Politico, By Jennifer Haberkorn –
April 1, 2012: One day in June, the Supreme Court will declare whether President Barack Obama’s health care reform law is constitutional.
The next day, both parties will have to pick up the pieces.
A victory in the Supreme Court — less than five months before the presidential election — doesn’t guarantee that either party can win over public opinion. And it certainly doesn’t signal the end of the debate over health care reform.
Here are the four most likely scenarios:
The mandate is struck along with insurance reforms
This scenario robs the Obama administration of key, popular benefits of the health law. If the insurance rules are struck, insurance companies will still be able to deny coverage based on customers’ costly pre-existing conditions and charge more to older and sicker — or female — patients.
The Obama administration and congressional Democrats would likely try to put the pieces of the health law back together — but not without blaming Republicans for pushing a lawsuit that they will say “puts insurance companies in charge” again.
“How will the public react when the United States Supreme Court upholds systematic gender discrimination against women in the insurance market?” asked John McDonough, a public health professor at Harvard who helped craft the health law as a senior Senate aide.
“I hope they’ll be pretty pissed off,” he said. “Maybe it will take [the benefits] being struck to wake up the public that they were in there.”
If there is strong public reaction, Republicans would be under pressure to find some way of enacting those insurance reforms without the mandate.
“If Republicans do win, they’re going to have to work on some other ways to get reliable coverage for people who don’t have employer coverage,” said Mark McClellan, who served in the second Bush administration and is now director of the Brookings Institution’s Engelberg Center for Health Reform.
Policymakers have identified alternatives to the mandate that attempt to accomplish the same goal of encouraging everyone — especially young and healthy people — to purchase health insurance, which spreads the risk and contains costs. Some potential fixes are relatively bipartisan, at least on paper.
Those ideas include: charging more if a person buys insurance at the last minute, tax incentives and a promise that if a person buys coverage, that person wouldn’t lose it if he or she were to get sick and need it.
“There may be interest in both sides on those kinds of reforms,” McClellan said.
But the politics will be incredibly messy after a court ruling striking a key part of Obama’s signature law, and it’s unlikely that the parties would suddenly clasp hands and start seeking solutions together amid a presidential campaign. Not much is likely to get done on Capitol Hill until the 113th Congress begins in January 2013.
In addition, insurance companies will be under tremendous political pressure to voluntarily end the practices , but that would probably lead to higher premiums.
If Democrats do well in the November elections, their leaders in Congress could try to re-do the mandate under Congress’s taxing power. But it would be difficult to get moderate Democrats to vote for something that resembles a mandate that the public never warmed to and the court declared unconstitutional.
Still, if they are successful, the tax-power mandate would be more constitutionally sound.
“All they’d have to do is bring it up through budget reconciliation … and add the word ‘tax,’” McDonough said.
The mandate alone is struck; insurance reforms remain
This scenario would be just as problematic — or perhaps worse — for backers of the health reform law.
The combination of requiring insurance companies to provide costly benefits without having the broader insurance pool created through the mandate would probably cause insurance premiums to spike. Republicans would blame Obama for making health insurance more expensive. Democrats would blame insurers for the higher premiums.
In other words: Déjà vu and total gridlock.
It’s the scenario insurance companies dread most — and they could start a mini revolt over having to cover expensive patients without the mandate.
“For the administration, the challenge is how do they credibly convince insurance companies that it’s going to work,” McClellan said. “By early 2013, if it’s not completely clear to insurers how they’re going to make coverage sustainable, they’re going to have a real problem.”
The scenario would again pressure lawmakers to enact legislation to encourage consumers to buy health insurance.
If the mandate is struck — with or without the insurance reforms — progressives are going to argue that the only solution is a single-payer program. Justice Ruth Bader Ginsburg pointed out from the bench last week that it’s the market-driven nature of the mandate that raises the constitutionality questions. A straight, government-run, single-payer program doesn’t pose that problem.
“There’s something very odd about … the government can take over the whole thing and we all say, ‘Oh, yes, that’s fine,’ but if the government wants to get — to preserve private insurers, it can’t do that,” she said during oral arguments on the individual mandate.
But there is little chance Obama would back a “single payer” platform right before an election.
The entire law (or most of it) falls
This is the scenario Republicans are looking for, but it may come back to bite them.
If the Supreme Court strikes the entire law, “we’re in a whole different world,” said Ezekiel Emanuel, who advised the White House on health reform. “Who knows what happens. It’s all uncertain.”
While the Supreme Court would get rid of the unpopular pieces of the law, the popular ones would be swept aside too.
And the supporters of the law wouldn’t hesitate to remind voters that Republicans robbed their kids of the chance to stay on their parents’ insurance plan through age 26, allowed insurance companies to charge more to women and re-created the Medicare prescription donut hole. And a lot of people counting on getting covered in 2014 would be disappointed.
The ruling would likely re-energize the Democratic base; Obama and Democrats down the ballot would be able to run against an “activist” Supreme Court.
Republicans would try to move quickly to enact small-scale health reform legislation aimed at restoring some of the popular pieces of the health law.
But Democrats won’t want to support something far less comprehensive than the Affordable Care Act, not with some 50 million Americans uninsured.
The entire law stands
This is what the Obama administration is hoping for. But a thumbs up from the Supreme Court doesn’t solve all of the health law’s — or administration’s — problems.
The mandate is considered relatively weak: The penalty for not obeying it starts at $95 in 2014 — that’s nothing compared with the cost of insurance premiums. It does increase after that, but the amounts are still less than the cost of a typical policy.
It’s hard to see how Republicans don’t force a vote in 2013 on delaying the mandate for a year or further weakening the penalty, which would put financial pressure on the insurance companies.
“I never felt [the mandate] was strong enough to really drive behavior,” said Mary Grealy, president of the Healthcare Leadership Council. “We knew we’d have to do a lot of work to encourage people to enroll and get covered.”
Republicans would use a ruling affirming the law to stir up their base, arguing that if the court won’t strike the law, voters need to elect a Republican president and Congress that will. They’d also face new pressure to define exactly what they would do to reform the health system.
“It won’t be that hard to overturn the unpopular provisions, but it is going to be a challenge to overturn or leave unaddressed the problem of affordable access to insurance,” McClellan said.