We end this week with a look back on the Supreme Court arguments. Friday is conference day at the Court. That means the Justices will come together and vote on the cases they heard during the week. This week, they only heard one case, so today's conference will be momentous -- and, I would bet, lively. Once the votes are in, the senior Justice in the majority will either decide to write the majority opinion or assign it to another Justice. I'm betting that, wherever the majority goes, Chief Justice Roberts will be there, and he will write. This will be a defining moment in the life of the Roberts Court. He will want to keep the reins. But I'm betting every Justice writes an opinion, concurring or dissenting -- they will each want to have their say. And one thing's for sure -- we won't know a thing until the decision is released, probably in June.
But where will the votes fall? The conventional wisdom is that Justice Kennedy, and perhaps Chief Justice Roberts, are on the fence. The NY Times says Justice Kennedy's primary value is liberty -- but is health care liberty, or is not having to buy health insurance liberty? And if the Court strikes down the mandate, will it strike down the whole law with it? If they don't -- if they just strike down the mandate -- the insurance industry will go ballistic. They will say they can't cover people with pre-existing conditions without also driving healthy people into the pool. Perhaps that will force Congress to act to find a different way to encourage people into the market. If they strike down the whole law -- well, I doubt Congress will ever get any meaningful reform through any time soon. But that would come as a relief to insurance companies -- and the likelihood of that scenario has maintained investor confidence in insurance companies.
And what if the law is struck down? The system is broken, as most people admit. If this version of reform doesn't work, then what? The GOP certainly hasn't put anything resembling a plan on the table. I'd expect a lot of chaos as we try to sort out how to undo the parts of the law that already have taken effect. I think there will be an effort to revisit the idea of coverage of pre-existing conditions, but if we try to do that through high risk pools, the price will put the plan out of reach for most Americans, at least without subsidies. A reporter called me yesterday and told me that Connecticut Governor Malloy's office said they would consider imposing a mandate on the state level, like Massachusetts. But where would they get the money for subsidies? Without subsidies, you can't have a mandate because too many people can't afford market prices. In the meantime, we're in limbo, with implementation going forward in many states who don't know whether these efforts will be in vain.
Most of all, if part or all of the law is struck down, what happens to us patients?
And what will the decision mean for the presidential election? Would striking down the law energize President Obama's base? After all, the opposition to the law can be construed as an effort to provide care to as few people as possible. Or will it be a crushing blow to his presidency?
Lots of questions with no answers for quite some time. So now, we go back to our regular lives waiting for word from the Court on whether people with chronic illnesses will be treated as equals for insurance purposes in our lifetimes. Jennifer