Thursday, June 28, 2012

For All You Wonks

I admit it.  I'm obsessed with today's Supreme Court ruling.  This morning, I read the numerous predictions and analyses mostly to make the time pass until we know the only answer that really counts.  In case you're also looking to pass the time -- or maybe try to make a prediction -- here's a little light reading.

Whatever happens today is likely to affect every single American in one way or another.   It will define the future of the American health care system, according to HuffPo's headline.  The law already has done so much -- eliminating lifetime caps on benefits, covering kids to age 19 with pre-existing conditions, creating the Pre-existing Condition Insurance plan, covering kids to age 26 on their parents' plans, free preventive care, big savings for seniors in Medicare Part D -- and on and on.  Indeed, how many insurance appeals did we win because we now have a right to appeal to an independent review organization that can overturn the insurance company?  Grants for innovative practice models, grants for consumer assistance programs, grants to community health centers to beef up the delivery of primary care -- on and on. 

And that's before the big stuff even takes effect -- coverage of pre-existing conditions, premiums based only on geography and age, not gender, not health status.  Exchanges where you will be able to compare and purchase insurance plans.  A single, uniform summary of benefits and coverage that will be the same for every plan, making comparisons easy.  An essential health benefits package to make sure that the insurance we buy has value and covers what we need.  Medicaid expansion.  Subsidies to help people pay their insurance premiums. 

The truth is that the American people don't know the truth about health reform. More than half of all Americans think the current system stinks -- but they aren't in favor of reform, either.  They want a do-over on health reform.  I continue to believe that's because most of them don't understand it.  Someone I know who's unemployed and married to a pretty sick guy who's also unemployed said she's against the individual mandate because they shouldn't be forced to buy something they can't afford.  But there's an exemption from the mandate for people who can't afford insurance.  And for a couple like this, they will be covered by Medicaid for free.  It sort of makes me want to talk one-on-one to everybody who's against reform (except the outliers, who just want to eliminate as much of the federal government as possible, of course). 

So what will we know after the Court rules?  If they uphold the law, nothing changes.  But if they strike down all or part of the law, there will be huge uncertainty.  What will Congress and the White House do if the mandate is struck down and only the mandate?  Or if we lose the mandate, coverage of pre-existing conditions, and the prohibition against using health status to calculate premiums?  If the whole law is struck down, what will happen to kids up to age 26 who are on their parents' policies?  What about the Pre-existing Condition Insurance Plan?  What about all the grants that have been awarded?  Complete chaos.  Which is one reason I feel nearly certain that the entire law will not be struck down. 

The states -- especially those, like Connecticut, which have invested heavily in reform -- have a lot to lose here, too.  Our Governor Dannel Malloy says that Connecticut could lose $100 million  and 500,000 people could lose health care coverage. But we have at least as much to gain if the Court upholds the law, as do all of the states.

One thing's for sure, though.  There's going to be a lot of spin, a lot of advocacy the minute the decision comes down.  Advocates from all points of view will be waiting outside the Court to talk to press.  Some organizations already have multiple press releases ready, trying to account for every possibility.  And, of course, the presidential campaigns will be all over the decision, trying to use it to energize their base, no matter what the result isMany see this as a referendum on President Obama's first term.

Predictions?  I start with Linda Greenhouse, who's covered the Supreme Court for as long as I can remember.  She's smart, she knows the Court -- and she predicts the Court will uphold the law.  We can hope, right?  Some say the Court may strike down the whole law.  I don't believe that for a second.  To do so would undermine the Court's credibility to such a huge extent -- I don't think Chief Justice Roberts is going to let that happen.  Many former clerks and law professors think the mandate and only the mandate is going down; still others -- including my wonderful colleague Tim Jost -- think the law will be upheld

Me?  I'm pretty close to certain that the whole law won't be struck down.  I'm equally convinced that the Court will reject the challenge to the Medicaid expansion, and that the Court won't use the Anti-Injunction Act to duck making a ruling at all.  So we're left with the mandate.  In my good moments, I think the Court will uphold the whole law.  In my scared moments, I think the mandate goes down -- and then, it's just a question of whether we also lose coverage of pre-existing conditions and premium rating without regard to health status.  If pushed to bet, I'd say that, if the mandate is stricken, it will be only the mandate. 

Three hours, and finally, the wait will be over and the hard work will begin anew.  I'll bring you the decision the minute it's announced, and will follow with summary and analysis of the decision over the course of the day.  It's going to be a long day -- but hopefully a good one.  Jennifer


  1. Jean Mills AranhaJune 28, 2012 at 5:17 AM

    Thanks, Jennifer. I still think they may uphold the whole thing. Still seems like the correct, principled thing to me. Keeping my fingers crossed....

  2. The problem with the way things have been reported is the outright pouting from the left wing of the Democratic Party. Yeah, 50-55% oppose the law, but a good 15% of the public opposed it because they think it doesn't go far enough. It's why there is overwhelming support for the for provisions of the law but not the law itself. The media assumes all opponents are the tea partiers because they're most vocal, but they're wrong.

    If the Supreme Court overturns everything, the outright idiots on the left wing of the Democratic Party will go nuts. And then everybody will realize that around 60% of the public supported the core principles of the law.

    If they uphold it, the media will start reporting on the provisions. And the law will eventually be well liked because it will work.