by Robert I. Field, Ph.D., M.P.H., J.D.
The Supreme Court is expected to rule on President Obama's health care package Thursday morning.
Predicting the outcome is the hottest game in the health policy world. As anticipation grows, the rising tension is palpable.
What’s the inside line?
The current consensus seems to be that the Court will rule against the law’s mandate that all individuals have health insurance. A survey of former Supreme Court clerks and attorneys who practice before the Court found 57 percent expecting that outcome. (Click here to read the survey results.)
That percentage has risen markedly since the Court heard oral arguments in the case last March. Before the justices tipped their hands through the tenor of their questioning, just 35 percent of respondents had predicted the mandate’s demise. Several respondents were swayed by the posture of Justice Kennedy, who is seen as a possible swing vote.
Beyond the Supreme Court experts, there are those who feel confident enough in their prognostic powers to back them up with money. Intrade, a Web site that lets visitors buy shares in their predictions, gives odds of 76.8 percent that the mandate will go.
A recent survey of published comments on the case showed health policy analysts (including this observer who expects the mandate to be struck down) divided in their views. The predictions of politicians in the survey, not surprisingly, were consistent with their partisan perspectives.
So much for the mandate. What about the rest of the law?
In the survey of Supreme Court experts, 48 percent expected the justices to partially sever the mandate from the rest of the law. That means they would strike provisions closely aligned with the mandate – guaranteed issue of insurance policies regardless of health status and regulation of rates – but leave the rest intact.
Only 22 percent of them expected the justices to rule against the law’s expansion of Medicaid.
The wild card is the chance that the Court will issue a broad ruling that not only strikes all or part of the law, but also sets new limits on Congressional power. For over 70 years, the justices have granted Congress broad authority to impose regulations when interstate commerce is concerned. The health care decision could mark a change of course.
Such a ruling would hold significance for more than just the fate of the health care law. It could alter the underlying role of the federal government.
So, what’s the bottom line? The most likely outcome is a narrow holding in which the mandate goes, but most of Obamacare remains the law of the land.
It will then be up to Congress to amend the law to comply with the Court’s ruling. It’s anyone’s guess as to how that would turn out. Few people seem willing to hazard predictions on the politics involved.
The saga of health reform keeps getting more and more interesting.
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