The Patient Protection and Affordable Care Act is far from perfect, but will the Supreme Court rule it unconstitutional?

Sometime this month, the Supreme Court is expected to hand down a ruling on the case challenging the constitutionality of the Patient Protection and Affordable Care Act —the health care reform law passed by Congress and signed by President Barack Obama in March, 2010. At the heart of the matter, is the Individual Mandate which requires all Americans to obtain health coverage by 2014, or pay a penalty when filing their income taxes starting in 2015. Those in opposition to the mandate say it is an “unprecedented” infringement on individual freedom, the government, however, believes the mandate is allowable under the Constitutional provision by which it has the power to tax and to regulate commerce.

It is important to remember that when the Affordable Care Act was first drafted, it included something called the “Public Option”, which would have formed a government-run health insurance agency as an alternative to (and competitor of) private health insurance companies. The idea was to provide an affordable coverage option to low-income individuals and families, under the new mandate, who are simply unable to afford coverage through private insurers. Many people (myself included) believe the Public Option would spur private insurance companies to lower rates in order to remain competitive, but still make it possible for everyone to be covered, thus reducing the cost of healthcare for everyone. It seemed like a win-win scenario.

The Public Option was a huge point of contention in Congress and was ultimately stripped from the bill, but the individual mandate and penalty for non-compliance remained, meaning every American was now legally required to purchase health insurance regardless of whether they could afford it. With no rules requiring private insurers to offer affordable coverage to low-income households, and no competing plans to keep pricing competitive and/or affordable, it quickly became a lose-lose proposition for everyone except those in the healthcare industry.

At the end of March (2012) parties on both sides presented 3 days of oral arguments to the Supreme Court on four key points:

Day 1: Can the case even be considered yet?

Since the penalties don’t begin until 2014, and won’t effectively be assessed until 2015, there is a question as to whether or not the case can even be considered yet because of the Anti-Injunction Act, a law enacted in 1867 which essentially requires a tax be assessed and paid in full before a suit can be brought forth in opposition to the tax. It prohibits the court from considering any case regarding tax assessment, until the tax has actually been imposed.

The issue being decided here is whether or not the penalty is considered a tax, and if it is, whether or not the court has jurisdiction to rule on the case before anyone actually has to pay it.

Day 2: Is the mandate constitutional?

Opponents argue here that the government does not have the power to require the purchase of goods or services and in doing so, they are intruding upon the individual freedoms of American citizens. From the government’s perspective, they believe they have authorization to enact the mandate under Article 1, Section 8 of the U.S. Constitution, which states in part, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States…

Day 3: If the mandate is ruled unconstitutional

Can it be separated (removed) from the rest of the healthcare law or must the entire law be stricken as unconstitutional, and whether or not expansion of the Medicaid program is constitutional?

The first question at issue here, is that of Severability;  can the other provisions of the law exist without the individual mandate, should it be ruled unconstitutional.

The law requires that everyone have coverage and requires health insurance providers to cover everyone. They are no longer allowed to deny coverage for pre-existing conditions, or cancel coverage when you get sick. Opponents argue that without the mandate, the other provisions in the law can’t be met.

The second part pertains to the expansion of Medicaid, which is the existing U.S. health plan available to low-income individuals and families. It is managed by the states and funding for the program is split between the states and the federal government. Expanding the existing program and creating State-based Health Insurance Exchanges was Congress’ partial solution to affordability, in lieu of the Public Option.

Although 90% of the cost of Medicaid expansion would be paid for by the federal government, some states argue this part of the bill amounts to “coersion” by the federal government, because by opting not to expand Medicaid in their state, they forego receiving all federal funding for Medicaid and have to drop out of the program altogether. As “karoli” put it so succinctly in a blog post on Crooks and Liars, it boils down to this, “To the right wing, this is called coercion. To the left, it’s called a gift.”

“We get tax credits for having solar-powered homes. We get tax credits for using fuel efficient cars. Why couldn’t we get a tax credit for having health insurance and saving the government from caring for us.” — Justice Sonia Sotomayor

Here are two great infographics from a GOOD Magazine contest where participants were charged with visually explaining  health care reform, thus simplifying its complexity for the masses.

GOOD Infographic Contest — Best information: Nicole Maria Rincon


GOOD Infographic Contest — Best overall: Nate Clancy

GOOD Infographic Contest — Best overall: Nate Clancy

I think everyone has an opinion on the Health Care Reform Act and whether for or against it, I think most Americans would agree that the health care system in this country has a lot of problems that need fixing. Health care costs in the U.S. continue rapidly rising, and in an economic downturn that equates to millions of people unable to afford even basic health care services — much less preventative care, or, heaven forbid a catastrophic accident or illness — hoping and preying they don’t get sick.

My personal opinion on the subject, is that without forcing the Public Option and not requiring more restrictions on cost, the government gave the upper hand to the health care industry and didn’t accomplish what was best for Americans. The Affordable Care Act does have some good provisions in it, but it didn’t go far enough in addressing both access and affordability.

“Everybody has to buy food sooner or later, so you define the market as food,” he said. “Therefore, everybody is in the market. Therefore, you can make people buy broccoli.” — Justice Antonin Scalia

I’m fine with a mandate as long as I can be guaranteed an affordable option. As it stands right now, I don’t have health insurance because I can’t afford $2500 a year in premiums, just to then turn around and pay another $1500 in deductibles and co-pays, before my insurance covers anything. Since I don’t have any pre-existing conditions or chronic health problems (fortunately), it’s cheaper for me to pay a few hundred dollars out of pocket for a check-up with my doctor once a year, and a hundred dollars twice a year to have my teeth cleaned than it is to throw money I don’t have, down the great toilet bowl of health insurance premiums that don’t actually cover anything. If something really terrible happens, I’m screwed, and as of 2014, I get to pay an additional $700 to the government because I can’t afford coverage.

I will be following this outcome closely, because it has huge ramifications for every American, no matter how it turns out.

  • If the law stands as constitutional, I’ll begin trying to figure out how I’m going to come up with a way to pay the penalty, because I certainly don’t expect to be able to afford a health care plan any time soon, but at least I will know that if I do get sick, I can’t be turned down for coverage, although that coverage will likely cost me a bundle.
  • If the mandate is ruled unconstitutional but severable, we can expect to see the cost of health care skyrocket as insurers are now required to cover everyone, but not everyone is required to be covered.
  • If the entire law is overturned and thrown out, we’ll be worse off than we were before health care reform passed, as we will go back to pre-existing conditions not being insurable, kids won’t be allowed to stay on their parents’ plan until the age of 26, insurance companies will go back to being largely cost unregulated, and continue dumping healthy people once they get sick, even though they’ve religiously paid their premiums.

Someone ends up a winner in either scenario, but the odds are not in favor of the American public in any of them.  ✻