Friday, December 19, 2014

Is health reform on the constitutional ropes?

Contrary to what opponents of the law often claim, the individual mandate is not the core of health reform. The real question is whether the justices will throw out the rest of the law if the mandate goes.

Is health reform on the constitutional ropes?

After the arguments before the Supreme Court this week, is health reform on life support?

Unless the court issues a sweeping ruling that dramatically changes existing law, there is a good chance the answer is no.

The odds that the Supreme Court will leave health reform’s individual mandate unscathed seemed to sink after the oral arguments on Tuesday. The five conservative justices who represent a majority of the court were united in their skepticism of its constitutionality.

However, that is not where the story ends. It is where it begins.

Contrary to what opponents of the law often claim, the mandate is not the core of health reform. The core is the requirement that insurers issue policies to everyone regardless of how sick they are. The mandate is a way to let them do that without going broke by forcing healthy people into the risk pool. There are other ways of encouraging everyone to maintain health coverage, and the law could work almost as well with any of them.

The real question is whether the justices will throw out the rest of the law if the mandate goes. The court could strike down the mandate but leave everything else intact, even the parts that force insurers to cover everyone. That approach keeps virtually all of health reform in effect.

And half of health reform doesn’t even rely on reforming the insurance market as a means to extend coverage.  It expands Medicaid to do that. If the court upholds the Medicaid expansion, health reform will have a huge impact regardless of what else is decided.

You wouldn’t realize that from some of the media reaction to the case. CNN legal analyst Jeffrey Toobin called Tuesday’s hearing a “trainwreck for the Obama administration” and predicted that the law is “going to be struck down.”

The Washington Post saw the mandate’s rough reception in court as “endangering the most ambitious domestic program to emerge from Congress in decades.”

And the Wall Street Journal conjectured that “the president’s signature domestic achievement could be struck down.”

The mandate may be the most contentious part of health reform, but virtually all of the rest of the law would do just fine without it.

A more important question from a legal perspective is whether, if the justices strike down the mandate, they will issue a broad ruling or a narrow one. Judging from their questioning on Tuesday, a narrow ruling seems more likely.

A narrow ruling would deny Congress the power to force people to buy a product such as health insurance but let Congress continue to regulate interstate commerce extensively in other regards. A broad ruling could go further and roll back powers that the court has already allowed Congress to use.

Most of the justices, including those in the conservative wing, seemed to indicate through their questioning that they were not looking to change the law one way or the other. Their major concern was that the powers of Congress remain as they are.

This means that even if, as is now widely anticipated, the court rejects the individual mandate, Obama’s signature legislative accomplishment could largely survive.

There’s a lot more to health reform than meets the eye.


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About this blog

Check Up covers regional health news and a wide array of healthcare topics from pharmaceutical happenings to patient safety. Read about some of our bloggers here.

Portions of this blog may also be found in the Inquirer's Sunday Health Section

Robert I. Field, Ph.D., J.D., M.P.H. Professor, School of Law & Drexel School of Public Health
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