Posted on Fri, Mar. 30, 2012
last updated: June 27, 2012 06:20:44 PM
WASHINGTON — The Supreme Court's historic health care decision, expected early this summer, has strong potential to jolt consumers, Congress, this year's political campaigns and the nation's health care industry.
Depending on the outcome, young adults who recently gained coverage could be dropped from their parents' plans. The insurance industry might have to jack up premiums. Political candidates will gain new talking points, and, in the most dramatic possibility — a repeal of the law — legislators would have to start over in fixing the broken health care system.
"All that has been done would have to be undone," said Len Nichols, the director of the Center for Health Policy Research and Ethics at George Mason University in Virginia.
After three days of Supreme Court oral arguments that concluded Wednesday, almost anything seems possible.
While any decision is likely to be close, the justices sounded as if they could strike down the law's "individual mandate," which requires nearly everyone to obtain coverage by 2014 or pay a fine, as well as the directive that states expand Medicaid coverage. Although perhaps less likely, they could even kill the entire 2,700-page health care law and let Congress start over.
"My approach would say, if you take the heart out of the statute, the statute's gone," Justice Antonin Scalia said during the arguments.
Should the court strike down the entire Patient Protection and Affordable Care Act, as Florida and 25 other states urge, the immediate impact would be the sudden demise of dozens of provisions that already are in effect.
A temporary program that bars insurers from considering pre-existing conditions would be gone. So would the requirement that young adults up to age 26 be allowed to stay on their parents' policies, as well as certain breaks for Medicare prescription-drug beneficiaries.
Those provisions are popular, even with many Republicans, but the Democrats who wrote the health care bill have no precise strategy for reinstating them quickly.
"There (are) discussions quietly among some people about the what-ifs," said Sen. John Kerry, D-Mass., a senior member of the Senate Finance Committee, which has a key role in writing such legislation.
The most closely watched what-if involves the fate of the individual mandate. This provision is clearly vulnerable.
"This is unprecedented. This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce," Justice Anthony Kennedy, who's considered a pivotal voice, suggested at one point this week.
Despite the uproar, most might not notice the mandate's disappearance.
Ninety-four percent of the population wouldn't have to purchase new insurance coverage or face the penalty, according to a study by the Robert Wood Johnson Foundation for Washington's Urban Institute, an independent research group. Older people already are covered through Medicare. Other s would be exempt from the mandate or have insurance through employers or other programs.
But there are benefits to keeping the law intact, said the Urban Institute's Linda Blumberg, who led the analysis.
"While a small number of people would be directly affected by the individual responsibility requirement, the overall benefit to the population would be large," she said.
The insurance industry is concerned that the high court will overturn the mandate but keep other requirements intact.
The industry and the Obama administration say that if the mandate is struck down, the court also should remove the requirement that insurers offer coverage to people who have pre-existing conditions.
Eight states tried to revamp insurance laws without a mandate in the 1990s.
"These reforms resulted in a rise in insurance premiums, a reduction of individual insurance enrollment and no significant decrease in the number of uninsured," said Karen Ignagni, the president and chief executive officer of America's Health Insurance Plans, the industry's trade association.
Independent studies have found that imposing new requirements without retaining the mandate could mean a dramatic rise in premiums. That could trigger an increase in the uninsured population, since fewer people are likely to buy coverage.
"You'd have fewer healthy people and more unhealthy people in the insurance pool," said Timothy Jost, a professor of law at Washington and Lee University. "Health insurance will become more expensive."
The Obama administration thinks that other elements of the bill, though, should be retained if the individual mandate goes down. The Supreme Court justices sounded split over the idea during oral argument this week.
Legally, then, there's a thicket of truly complicated options. Politically, operatives from both sides are trying to carve away the complexities for a simple election-year message.
"I promise you if the Supreme Court doesn't protect our liberties, the American people will do so in November, when you see the biggest turnout of people of faith you've ever seen," said Ralph Reed, founder of the Faith and Freedom Coalition.
Bring it on, countered Sen. Charles Schumer, D-N.Y.
"Republicans were the father of the individual mandate, and now they want to give it up for adoption on the steps of the Supreme Court," said Schumer, noting that as the governor of Massachusetts, GOP presidential contender Mitt Romney signed a state health care measure into law that's considered the model for the federal law.
"If Mitt Romney is the nominee, in effect health care will be off the table as an issue." Schumer said.
The case also is going to be made loudly in Congress. If the court upholds the law, Republicans probably will try to repeal all or part of it.
They already have tried. A week ago, an effort in the House of Representatives to knock out the 15-member panel that will review — and possibly create policies — to lower Medicare costs won on a party-line vote.
But that vote also showed the limitations of any repeal efforts. The proposal is going nowhere in the Senate, where it takes 60 votes to cut off debate and Democrats control 53 of the 100 seats.
Bottom line: Nothing's getting repealed in this Congress, and it's going to be hard to effect changes.
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