The Core of this challenge is whether the Mandate that everyone have health insurance is constitutional. There are secondary issues, but this is the heart of the matter.
If the Court upholds the mandate, the ACA goes forward as planned to the continued objections of many conservatives. Getting everyone into the pool sharing the costs of the entire system is seen as the only way to keep costs down and maintain the insurance system. Jurists across the country are leaning slightly in favor of this as the likely outcome based on previous efforts to regulate commerce.
If the Court finds the mandate unconstitutional, do they find it severable from the rest of the law? If not, that will strike the whole ACA down. This according to the jurists seems like the least likely outcome.
If, on the other hand, they do invoke severability, the ball is back in the White House’s court. At that point the White House will have to answer this question: Can health care reform be successful without the individual mandate?
Why is the Mandate essential? First, if we don’t require everyone to buy insurance, then insurance will be disproportionately purchased by those who need it, the likely sick, making it more expensive/unaffordable. This would lead many to discontinue coverage in a continuous cycle that drives the price higher and higher until no one but the very rich can afford insurance any more and the system collapses.
Second, if a person is not covered by health insurance then any bills he/she accrues must be paid by the individual. If he/she cannot pay the bills, then civil suits are one remedy. If there are insufficient assets for a suit to be successful, then the cost is either covered by the care giver (as a loss) or by the government (in direct aid to care givers).
However, if the entire system is under-financed then the ability to continue bearing losses or covering expenses via government subsidy is at risk.
So….What happens if the Supreme Court strikes down the individual mandate but rules that severability applies? Two options. The Obama administration washes its hands of health reform, proclaiming that it can’t be done without the individual mandate because costs will rise too rapidly and the insurance system will collapse. Or the Obama Administration forges onward with a modified system.
Option one is terrible politics with the President and his Democratic allies admitting defeat on one of the defining aspects of the Obama presidency. Moreover, it would have tremendous negative implications for the future of health reform initiatives generally.
Option two looks good politically but it could destroy the health insurance market and hurt Americans in the process. If it shapes up that way it would be an example of very bad leadership and be incredibly painful.
But, could it be done in a way that demonstrates sound leadership and minimizes the pain. New evidence suggests that the pain might not be as great as many fear. Simulation models from the Kaiser Foundation and John Sheils and Randall Haught of the Lewin Group have found that health reform without the individual mandate would result in fewer people being covered and insurance premiums increasing, but things would still be better than if we did nothing at all.
According to their findings, without reform 51.6 million remain uninsured. With mandate based reform 20.7 million remain uninsured. Without the mandate but with reform continuing 28.5 million remain uninsured. Premiums without reform rise by 15.9%. Premiums with reform (but without the mandate) rise by 12.6%.
However. the CBO is not nearly as optimistic with many more uninsured and the costs much higher but there would still be some improvement. The CBO expects that axing the individual mandate will mean 44 millon insured persons and a premium increase between 14 and 16%
If the Court finds the individual mandate unconstitutional, the White House will have more actuaries and health economists crunching numbers than you can imagine and the political pressure on the GOP will increase tremendously.
If the Supreme Court finds the ACA unconstitutional in any way THEN the Obama campaign will launch an Information Campaign that will feature all the features immediately endangered by the decision. The following, the campaign would say, are now on the chopping block—-
1) …insurance companies are prohibited from imposing annual and lifetime dollar limits on essential coverage.
2) …job-based health plans and new individual plans aren’t allowed to deny or exclude coverage for children (under age 19) based on a pre-existing condition including a disability.
3) …children under age 26, covered by their parent’s insurance if it covers dependent children at all.
3) …if income is less than the equivalent of about $88,000 for a family of four today, and employment doesn’t offer affordable coverage, families may get tax credits to help pay for insurance. (THIS IS 28.6 MILLION AMERICANS, by the way)
4) …pregnancy and newborn care, along with vision and dental coverage for children, is covered in all exchange plans and new plans sold to individuals and small businesses.
ALL OF THAT GONE?
DONE AWAY WITH BY A SUPREME COURT DECISION?
And then the White House will push what WOULD HAVE BEEN IN PLACE by 2014 when public exchanges and subsidies would have expanded the number of insured tremendously, health insurance premium oversight would increase and the protections now applied to children would be expanded to cover everyone. NONE OF THAT HAPPENS IF THE LAW IS STRUCK DOWN.
IT WILL EMPHASIZE THE IMPORTANCE OF HAVING APPOINTMENTS TO THE COURT WHO ARE NOT FIRST AND FOREMOST AGENTS OF THE GOP. IT WILL EMPHASIZE THAT THE GOP HAS NO PLAN TO DEAL WITH HEALTH CARE NEEDS.
Two likely results? If that info campaign is successful, the Obama campaign will be lifted as Americans suddenly realize ALL they have lost and turn on the GOP in large numbers. The White House, buoyed by public response will push ahead with reform without the mandate demanding that Congress find a way to fund the program fully. And the Health Care Reform debates begins again.