Health Reform Hangs in the Balance


March 29, 2012

exterior of the U.S. Supreme Court

Earlier this week, the U.S. Supreme Court heard three days of oral arguments about the constitutionality of the Patient Protection and Affordable Care Act.

Hundreds of supporters and opponents of the controversial law gathered on the steps of the Supreme Court waving American flags, holding posters and chanting slogans. Current and past presidential contenders held impromptu rallies, and a brass band even provided some entertainment.

Because the Supreme Court does not allow television cameras inside the court, the public had to either wait for the transcripts or rely on news outlets’ reports of one of the biggest cases to reach the bench in decades

Under the law, beginning in 2014, all Americans are required to have health insurance coverage or pay a tax penalty. Americans with employer coverage satisfy the minimum coverage requirement. Individuals and families without access to employer coverage will be able to purchase health insurance through state exchanges, with subsidies available for low and moderate income families with incomes below 400 percent of the federal poverty level (slightly more than $75,000 for a family of three in 2012). Medicaid will also be expanded to cover all poor Americans below age 65.

Four main questions went before the bench. Is the minimum coverage requirement, known as the individual mandate, constitutional? Is the Medicaid eligibility expansion constitutional? Can the rest of the law stand if the individual mandate is struck down? And can the court even hear the argument surrounding the minimum coverage requirement before the tax penalties are assessed in 2015?

A decision is expected by the end of June.

Sara Rosenbaum, the Harold and Jane Hirsh Professor of Health Law and Policy, has been blogging every day after the arguments for Health Affairs, and her expertise has been sought out by dozens of media outlets around the world. Ms. Rosenbaum, who holds appointments in both the School of Public Health and Health Services and the Law School, took a quick break to answer some questions for George Washington Today and offer her opinion on the fate of the health care law.

Q: Earlier this week, you said you thought there would be a decisive ruling in favor of the law. Do you still believe that’s the case?

A: It is important for people to separate the oral arguments from the deliberations and ruling. At an oral argument of this magnitude, one would expect particularly tough questioning, and this is indeed what both sides got. Many were watching Chief Justice John Roberts and Justice Anthony Kennedy closely, and their probing was equally significant on both sides.

Q: Could the health care law work without the minimum coverage requirement?

A: There certainly are ways to fashion a “voluntary” plan. One could imagine a voluntary insurance program in which people can enroll during an open enrollment period with added and significant financial penalties for delaying. This is, in fact the way that Medicare Parts B and D work. Although in Medicare, the target population is older or in poorer health or both, so the incentive to enroll is much greater. Although a voluntary “opt in” system can technically work, expert analyses suggest that its ability to reduce the number of uninsured by much is limited, at least in the near term.

Q: What surprises came out of the oral arguments?

A: I found very little of the argument surprising. I had expected tough questioning, and this is what happened. Perhaps, like many people, I was somewhat surprised that Solicitor General Donald Verrilli was not as effective as he might have been, but these are not the issues that ultimately decide the case.

Q: Is there a chance the court could make a ruling on this case before the end of June?

A: It is certainly possible that a decision could come far sooner.

Q: What would be the wider implications of the Supreme Court knocking down the whole law?

A: The implications of a finding that the entire law must go are enormous given the number of initiatives that in fact drew bipartisan support and have been set in motion. These initiatives include key insurance reforms such as coverage of young adults, the expansion of health centers, the new Medicaid options, the investments in preemption, the cost containment steps aimed at Medicare growth and the introduction of new approaches for organizing and delivering health care. Most observers would be shocked were this to be the outcome.