Supreme Court Expected to Rule Thursday on Health Care Reform

WEDNESDAY June 27, 2012 -- The U.S. Supreme Court on Thursday is expected to hand down its ruling on the constitutionality of the Patient Protection and Affordable Care Act, the Obama administration's signature legislative achievement.

The law set in motion a series of reforms designed to extend health coverage to more than 30 million uninsured Americans. It seeks to accomplish these goals in several ways. More lower-income people will be allowed to enroll in Medicaid, while other uninsured individuals can buy coverage through new state health insurance exchanges. Some people who buy coverage may qualify for tax credits.

The 2010 law's most controversial component -- and one of the key targets of the Supreme Court's scrutiny -- requires almost all Americans to maintain health insurance coverage or pay a penalty.

The law also aims to improve the quality and efficiency of health care. For example, there are programs to improve care coordination and reduce fraud and abuse in Medicare, the government-run insurance program for older and disabled Americans.

A number of the law's most popular provisions are already in effect. For instance, parents in private insurance plans that offer dependent coverage can keep their adult children on the plan up to age 26. And most plans must cover preventive health screenings, such as mammograms and colonoscopies, at no out-of-pocket cost to the patient.

Core elements of the law -- such as expanding Medicaid, establishing the state health insurance exchanges and requiring people to have coverage or pay a penalty, known as the "individual mandate" -- aren't scheduled to take effect until 2014.

The high court could decide to uphold the law in its entirety, strike it down entirely, strip away key provisions, or delay a decision until after penalties for not having insurance are assessed. No matter how it rules, there's no sign that the torrid debate over the cost and delivery of health care in the United States will be put to rest.

A recent Harris Interactive/HealthDay poll found, for example, that most Americans agree that changes are needed to sustain Medicare, but few want to pay higher taxes or spend more out of their own wallets to prop up the financially ailing program.

"I think it's a safe bet that the health-care cost debate is going to persist," said Ilya Somin, an associate professor at George Mason University School of Law in Arlington, Va., who has written legal briefs challenging the individual mandate.

The crux of the court challenge

One of the key questions that the Supreme Court is being asked to address is whether the individual mandate is constitutional. Opponents of the provision, set to take effect in 2014, argue that Congress cannot force people to buy health insurance or tax them for failing to pay the penalty.

Another point of contention is whether the law can survive without the individual mandate. New protections in the Affordable Care Act ban insurers from denying anyone coverage because of pre-existing medical conditions or from inflating premiums based on a person's medical history. But the law's architects insist that it would be too costly to implement these reforms if only the sick bought insurance.

"Without that requirement, there's an incentive for people to wait and purchase coverage only after they need medical service," said Robert Zirkelbach, a spokesman for America's Health Insurance Plans, a Washington, D.C.-based trade association representing the health insurance industry.

Also at issue is the constitutionality of the law's Medicaid expansion. States, in exchange for additional federal funding, must cover nearly all non-Medicare-eligible adults at or below 133 percent of the federal poverty level. In 2012, the cutoffs are $14,856 for an individual and $30,657 for a family of four.

In the two years since its passage, the Affordable Care Act has been the target of multiple lawsuits, with a handful of cases working their way through the federal appellate court system.

In previous cases, the 6th Circuit Court of Appeals in Cincinnati and the D.C. Circuit Court of Appeals in Washington upheld the individual mandate. But the courts have not ruled in lockstep. The 11th Circuit in Atlanta found the mandate unconstitutional but allowed the rest of the law, including the Medicaid expansion, to stand.

Last November, the U.S. Supreme Court agreed to hear arguments from two 11th Circuit cases filed by the National Federation of Independent Business and a 26-state coalition led by the State of Florida.

In March, the high court heard oral arguments on the Medicaid expansion and the individual mandate as well as the mandate's severability from the rest of the law. It also considered whether the fine for not buying insurance is a "penalty" or a "tax." That distinction is important because federal law bars the court from ruling on a tax dispute before the tax is levied.

Predicting the outcome

Constitutional law experts who followed proceedings in the case believe that Justice Anthony Kennedy, a moderate Reagan-era appointee, may hold the deciding vote. On Day 2 of oral arguments in March, Kennedy said the federal government has "a heavy burden" to justify Congress' right to mandate health insurance coverage. Yet he also seemed to acknowledge the government's view that health insurance is different from other markets. Chief Justice John Roberts, another Republican appointee, also posed questions that seemed to both bolster and undercut the government's position.

"I think that there's a strong possibility that the court will uphold the entire law, 6 to 3, with Kennedy and Roberts voting to uphold it," said law professor Renée Landers, director of Suffolk University Law School's Health and Biomedical Law Concentration, in Boston.

She found both justices' questions "quite balanced" and believes "both of them have this institutional concern for the court about wiping out in one fell swoop 70-plus years of jurisprudence on the Commerce Clause," the section of the Constitution that gives Congress the power to regulate activities that affect interstate commerce.

"If the law is invalidated in any respect, it'll be a 5-4 decision, clearly along Republican-appointee, Democratic-appointee lines," Landers added.

At Intrade, an online financial exchange for wagering on political, entertainment and financial events, investors have been predicting the individual mandate has a better than 57 percent chance of being ruled unconstitutional by the court before year's end, and a 61 percent chance of its demise before the end of 2013.

George Mason's Somin doesn't believe the federal government's arguments in defense of the mandate stand up to scrutiny. "When you look at each one of them closely, they all break down against inspection," he said.

What it means for patient care

Striking down the health reform law would end health insurance coverage for millions of Americans, disrupt efforts to improve care coordination and halt important insurance market reforms, among other reforms, according to the American Medical Association.

"We continue to support the health reform law as an important step in transforming our health-care system, although we are working hard to improve and make important changes in the law," AMA President-elect Dr. Jeremy Lazarus said in a prepared statement.

Added Michael Miller, policy director at Boston-based Community Catalyst, a national consumer advocacy group: "The implications for patients . . . and for the health-care system are catastrophic."

Miller cited a Robert Wood Johnson Foundation-funded study published in the journal Medical Care that suggested that high rates of "uninsurance" in a community have a "spillover effect," negatively influencing working-age adults' and seniors' access to health-care services and satisfaction with the care they receive.

A majority of working-age adults and children in America -- 53.5 percent in 2010, according to a study by the National Institute for Health Care Reform -- have coverage through an employer-sponsored health plan.

Tracy Watts, a senior consultant in the Washington, D.C., office of the consulting firm Mercer LLC, said people in employer-sponsored plans can expect to see continuing efforts to replace traditional coverage with so-called consumer-directed plans, which pair a high-deductible plan with some type of savings account. There will also be greater use of incentives for individuals to stay healthy and manage chronic conditions, and higher out-of-pocket costs, she said.

"With or without reform, employers are focused on how to manage costs," Watts said.

"ObamaCare" opponents, however, suggest that the public would be better off if the Supreme Court were to invalidate the entire law.

"One of the criticisms that has been leveled at people who say this [law] should go down is, 'Well, we don't want to go back to the way it was,' and we agree 100 percent that the way it was prior to the passage of this law was not working," said Dr. Richard Armstrong, a general surgeon in Newberry, Mich., and chief operating officer of Docs4PatientCare, whose members oppose the Affordable Care Act.

Instead, the organization backs a series of free-market reforms that would put health-care spending decisions back in consumers' hands.

"The bottom line in this is that we need to get back to some fiscal sanity in America," Armstrong said.

More information

The Kaiser Family Foundation has a primer on the Supreme Court's review of the health-care reform law.

Posted: June 2012


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