"The case is submitted." That's the Chief Justice's recitation at the end of argument in a case. When Chief Justice Roberts said that yesterday afternoon, it was simultaneously a relief and a source of great anxiety. Are they really going to strike down the individual mandate? If they do, will they strike down the whole law -- so we lose external appeals, the PCIP, coverage of kids to age 26, Medicare drug discounts, elimination of lifetime limits, free preventive care -- all of the things that we now have as a result of health reform. Surely, Justice Scalia would strike down the mandate and the rest of the entire law -- he made it clear that he has no intention of reviewing the whole statute and picking out which parts are linked to the mandate and which are not. And Justices Kagan and Sotomayor were equally clear -- they would let Congress do the job of deciding what to do if the mandate fails. Justices Kennedy and Roberts are harder to read. There's a near obsession about trying to read Justice Kennedy. Three days of argument and, although we are considerably more worried about the mandate than we were three days ago, we still don't know where this is going.
Of course, that doesn't stop the press and pundits from acting as if they know the answers. How will the Court's decision impact the Presidential election? Will this, in some strange way, boost President Obama's chances? What happens to our health care/insurance system if the mandate fails? Will Medicaid emerge intact? Speculation and more speculation. The American people are split on the mandate, but not on coverage of pre-existing conditions and the other consumer protections and market reforms -- especially those that have already taken effect. Will those provisions survive?
For now, all we really have are the questions. The Court should issue a ruling by the end of the term, meaning the end of June. I admit, I'm terrified -- I don't think we will have another shot at true reform in my lifetime. Going back to the status quo ante, how things were before the law was passed, is unthinkable. Even if I just consider the number of external appeals we've won -- cases that we would have lost without external appeal -- I am overwhelmed with anxiety. We just can't go back. And yet, we might. Jennifer