For health reform, constitutionality is not a matter of all or nothing

If the Supreme Court strikes down the mandate, it has several options. (J. Scott Applewhite / AP file photo)

The Supreme Court will decide in a few months whether health reform is constitutional. If the decision is no, where does that leave “Obamacare”? The answer is that most of it could end up remaining intact.

Opponents claim that Congress lacked authority to impose the law’s mandate that everyone have health insurance. However, if the Supreme Court agrees, it must then confront an even thornier issue. Does it throw out all 2,700 pages of the law or only that part? Or, in legal terms, is the challenged provision “severable”?

Opponents want the court to throw out everything. They claim that the mandate is so central that the rest of the law would be useless without it.

Last week, the Obama administration filed a brief with the court that argues otherwise. It contends that if the court strikes down the mandate, everything else should remain in place except for two related provisions. (Click here to see the entire brief.) These provisions require insurance companies to cover everyone and to charge the same rates regardless of health status.

If the Supreme Court strikes down the mandate, it has several options. It could leave everything else intact, including the two provisions that the administrations says are closely linked. That was the decision of the 11th Circuit Court of Appeals, whose decision is the focus of the Supreme Court review. The administration argues that this would wreak financial havoc for the insurance industry, because only sick people would then purchase coverage.

It could throw out the two related provisions along with the mandate but invalidate nothing else. This could leave many who are sick with no way to obtain coverage. However, the new insurance exchanges that the law creates would still come into being. They would greatly ease the process of buying individual policies, which could help some of the uninsured locate coverage options.

It could strike down all of the insurance-related provisions in the law. In that case, millions of the uninsured who are poor might still find new coverage under Medicaid, which will greatly expand under the law. That is, unless the Court strikes down the law’s Medicaid provisions, which are also subject to challenge.

Or, it could throw out everything. In that case, chaos would almost certainly ensue. The scope of the law is tremendous, covering topics that go well beyond health insurance. For example, it requires better reporting of hospital quality data, implements new public health programs, and permits the sale of cheaper versions of bioengineered drugs.

Some of these provisions have already taken effect. Repealing them now could sow massive confusion throughout the health care system. This is a result the court may want to avoid.

The outcome of the case remains anyone’s guess. But even if opponents prevail on the underlying issue, they might only achieve a partial victory. A lot of “Obamacare” could survive. In fact, even without the mandate, the law could remain an important force in filling some of America’s many health care gaps.

We will have some answers in a few months. 


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