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Wonkbook: Everything You Need to Know About the Supreme Court and Obamacare -- In One Post!
Just in time for this week's ruling, the Washington Post's Wonkblog gives us a run-down of what the Court may decide and what may happen next. An excerpt is below -- check out the full post here.
We'll be watching the SCOTUS Blog to learn if a decision will come today.
Posted by Sarah Kliff on June 25, 2012
Remind me what, exactly, will the Supreme Court be deciding?
The Supreme Court is weighing four separate constitutional challenges to the Affordable Care Act. The one they spent the most time debating at oral arguments was the individual mandate, which requires nearly all Americans to purchase health insurance. The Supreme Court justices will have to decide whether the Commerce Clause – which gives Congress the power to regulate interstate commerce – creates the authority to enact such a requirement.
There are also three other issues that the Justices have to decide on (which you can read about in more detail here). They have to decide whether they can even rule on the substance of the case, since the provisions being challenged haven’t come into effect yet. They need to decide whether, if the individual mandate falls, it can be severed from the rest of the law, or takes down other provisions with it. And they must decide whether the law’s Medicaid expansion – which has the program cover everyone below 133 percent of the Federal Poverty Line – is constitutional. States challenging it have said it is unconstitutional, as it puts an undue burden on the states.
What are the different ways that the Supreme Court could rule?
Because of the many issues the Court is weighing, there’s no simple list of possible outcomes. The court could uphold or overturn the law in full. Or, it could do something in-between, striking down specific provisions while leaving others intact. Which parts go down and which ones stand is completely within the justices’ discretion. That unpredictability explains why, across town, advocacy groups are writing as many as eight press releases that react to all the possible rulings.
While we don’t know how the Court will rule, certain outcomes do seem more likely than others. Both experts and the general public have become increasingly convinced that the Supreme Court will strike down the individual mandate. In one poll of 56 former Supreme Court clerks, the number who thought it would go down jumped by 22 percent before and after oral arguments. InTrade puts the odds at 79.9 percent.
What about the rest of the law? What happens if the individual mandate gets struck down?
A lot of this depends on whether the Supreme Court justices decide the individual mandate is severable from the rest of the law – that is, whether the rest of the Affordable Care Act can stand with this provision being struck down. In Justice Ruth Bader Ginsburg’s vivid phrase, “may the mandate be chopped, like a head of broccoli, from the rest of it?”
Most observers doubt the Court will want to take the step of invalidating the whole law even if they do rule against the individual mandate. But nobody really knows. If the mandate is severed but the rest of the law stands, the Affordable Care Act will still be a major health insurance expansion. The Medicaid expansion, to cover everyone under 133 percent of the Federal Poverty Line, would be the largest expansion of public health insurance coverage since 1965, the year that Medicaid and Medicare were created.
The Affordable Care Act has a number of provisions that have nothing to do with expanding health insurance at all. They include changes to how Medicare doctors get reimbursed, which look to move the health care system to one that pays for quality, rather than quantity. Big investments have been made in prevention and public health, which could continue, as could the insurance reforms that the Obama administration often touts. Those are things like allowing young adults up to age 26 to enroll on their parents’ coverage and not allowing insurers to charge co-pays for preventive care.
Let’s say the individual mandate goes down but the rest of the law stands. What happens?
The whole point of the individual mandate is to encourage everyone to purchase coverage, even the healthy people who don’t think they need it. That helps create what actuaries call a “balanced risk pool” where the healthy people, and their low medical costs, offset the high medical costs of sick people and help make insurance affordable.
Without a requirement to purchase coverage, health care economists roundly expect fewer people to buy it. The number of people who gain insurance through the Affordable Care Act would shrink. Health insurance, meanwhile, would become more expensive, although there’s a lot of debate about how much more it would cost. Economic modeling has estimated premiums would go up anywhere between 2 and 40 percent.
Can the Affordable Care Act’s insurance expansion work without the individual mandate?
This is a subject of huge debate among health policy experts. Some argue it cannot: Without a requirement to buy insurance, the market would go into a “death spiral,” with only the sick buying insurance and premiums becoming prohibitively expensive. This is what happened in a handful of states in the 1990s, like Washington, that tried to end pre-existing conditions without an individual mandate.
Others, however, say those states don’t make a very good analogy for the Affordable Care Act. The federal law will subsidize coverage for everyone under 400 percent of the Federal Poverty Line; the states did not. Those subsidies, they argue, will make health insurance affordable and encourage healthy individuals to enroll.
Could the individual mandate be replaced?
Yes: The Government Accountability Office has come up with nine policies that could encourage individuals to enroll in insurance coverage. Their list – which you can read here– includes ideas such as an open enrollment period, where individuals could only sign up for coverage at a certain point in the year, and more extensive outreach programs to make individuals aware of their options.
The difficulty is mostly political: congressional Republicans are unlikely to permit the Obama administration to repair the Affordable Care Act. But it might not be up to them. If the mandate is overturned but the rest of the law stands, many states might go looking for policy solutions to stabilize the health-care markets that they set up under the Affordable Care Act but that are now missing the steadying influence of the mandate.
When will the Supreme Court rule?
The Supreme Court is expected to finish its term by the end of June, meaning we should know by Friday.
Justices release opinions on weekdays at 10 a.m. Right now, they’re only scheduled to release opinions on Monday morning, but with nine cases still left on the docket – including both the health challenge, and a case of Arizona’s contentious immigration law – observers expect them to add additional days, likely Wednesday and Thursday.