The health sector is in a state of semi-paralysis over the fate of Obamacare.
While the Supreme Court’s decision is likely a month away, the American people already have made up their minds: Opinion polls show support for the law is at its lowest level since it passed more than two years ago, and two-thirds of Americans say they either want the whole law or the individual mandate overturned, according to a recent Washington Post/ABC News poll.
Meanwhile, Congress, state governments, and businesses across the country are puzzling over “what if” alternatives to try to be ready when the decision is issued. Here are the three most likely options:
1) If the Court upholds the whole law, then the battles would move to the ballot box while implementation of the sweeping health overhaul charges forward. Repealing Obamacare would instantly move to the top of the agenda for the presidential contest as opponents of the law work to elect a new president and majorities in both houses of Congress who are pledged to repeal. Their arguments would be compelling since the Court’s validation of the compulsory purchase of private insurance would mean the government would have authority for the first time to direct how citizens spend their private, after-tax money.
A parade of new lawsuits would march through the courts to challenge other provisions in the law, such as the contraceptive/abortifacient/sterilization mandate that 43 Catholic institutions are challenging as a violation of religious liberty, and the Independent Payment Advisory Board — the Medicare rationing board which the Goldwater Institute in Arizona is challenging as unconstitutional.
Meanwhile, the health sector and overall economy will be forced to start answering to the 159 new agencies, programs, and bureaucracies authorized under Obamacare and complying with the 12,000 pages — and counting — of new regulations. The burden of costly mandates on businesses will kill any hopes of job recovery. And the law’s perverse incentives for employers to drop insurance will likely toss tens of millions more people into taxpayer-subsidized coverage, destroying any chances of getting the federal budget deficit under control. The legislative and legal battles over the unpopular law will go on and on.
2) If the Court strikes part of law — the individual mandate and related insurance provisions — the battle over “fixes” will be instantly engaged. The House would quickly take another repeal vote — which would likely die in the Senate — while the president and the law’s supporters would mobilize to rescue the law. Expect them to propose alternatives to the individual mandate, such as limiting enrollment in federally subsidized insurance to a fixed period each year and imposing premium penalties for people who sign up later. Another alternative: automatically enroll people in health plans but permit them to opt out.
Neither will get any traction from conservatives. They will argue that the Court has removed the center pole in the Obamacare tent, and the rest of the law therefore must be struck to avoid doing even more damage.
Full repeal will rise to the top of the political agenda for November, while the administration works overtime to put as much of the law in place as fast as possible.
The business community and health sector will have no choice but to continue their plans to implement the law, even as they operate under a continuing cloud of uncertainty awaiting the election outcome.
3) If the Court strikes the whole law, activist groups that have been the strongest supporters of Obamacare will instantly take to the airwaves and possibly the streets. To calm the protests, a new and very different conversation must begin right away about viable short- and long-term solutions.
Congress will be pressured to act quickly to rescue some of the early Obamacare provisions that already are in place, such as allowing 26-year-old “children” on their parents’ health insurance policies and insurance pools for people with pre-existing conditions.
Congress must move very cautiously with any legislative backstop. Private health insurers likely could be convinced to keep the policies in place that allow 26-year-olds to stay on their parents’ policies since the policies already have been priced and written.
There also will be pressure to continue funding for the 50,000 people receiving insurance through the law’s pre-existing condition insurance pools so they don’t get thrown off the rolls. A short-term patch may be necessary. But over the longer term, legislators should focus on helping states fund their own pre-existing condition pools, or create them, but in ways that fit their needs and resources.
Any temporary solutions should not block the path for Congress to work in the next term on real patient-centered, market-based health reform that gives people control and choice over their health care and health-coverage arrangements. After Obamacare, any new comprehensive 2,800-page health-reform bill will be toxic. Incremental steps will be essential.
Presumptive nominee Mitt Romney is expected to release details of his long-term health-policy agenda this summer, which will set the terms for the general-election conversation. In recent speeches and articles, he has emphasized his support for “a free market, federalist approach” that spurs competition, flexibility, and consumer choice. That’s a hopeful sign.
Most people know only about the few early provisions of Obamacare, and few have seen major changes to their coverage. But it is a freight train that is gaining steam every day and is headed straight at our health sector and economy in 2014.
If the Court upholds the whole law, it will quickly become clear that the law simply can’t work. The American people will resist its intrusion into their lives, the states will find new ways to fight back, lawsuits will proliferate, and Congress will be forced to protect taxpayers from its budget-busting entitlements.
If the Court strikes it down, the nation will breathe a collective sigh of relief that we now can get on with the business of real reform that is consistent with our Constitution, our liberty, and our market economy.
Posted on National Review Online: Critical Condition, May 29, 2012.