The Supreme Court soon will pull the trigger on the epic health-care case. Better be ready to rumble. Everyone else is, as the court should announce Monday or by the end of next week whether the Obama administration’s signature health-care law lives or dies, in whole or in part.
“We’ll be ready for court contingencies,” Health and Human Services Secretary Kathleen Sebelius pledged.
Key players certainly are prepared to pounce, whichever way the court moves. If the entire Patient Protection and Affordable Care Act survives, Republicans will introduce repeal bills to keep the debate roiling. If the law dies, Democrats will turn an “activist” Supreme Court into a juicy campaign target while lawmakers from both parties resurrect certain favored portions of the measure. If the individual mandate to purchase coverage is cut out but the rest of the law is left intact, lawmakers and insurance companies will be figuring out how to manage what remains.
“The question is always, does Congress want half a loaf?” Justice Elena Kagan noted during oral arguments. “Is half a loaf better than no loaf?”
Whatever happens, it’s unlikely that Congress will act quickly, except to issue news releases. Republicans control the House of Representatives, but Democrats run the Senate. And lawmakers are scheduled to recess from June 29 until July 9.
Insurance companies, too, will need time to adjust. Len Nichols, the director of the Center for Health Policy Research and Ethics at George Mason University, noted that “insurers have been preparing for reforms, and they would have to do a 180 anticipating deregulation" that could force them to return to old business models.
Still, some crucial maneuvering already has occurred.
Aetna, Humana and United Healthcare have declared that they’ll continue offering certain popular health-law provisions regardless of the court’s eventual decision. These protected provisions include an option to keep children on their parents’ policies up to the age of 26.
More than 40 other parts of the law also have kicked in already, including protections for children who have pre-existing medical conditions and provisions that lower the cost of prescription drugs for seniors.
“While every health care plan will make its own decision, many will maintain important patient protections,” stressed Karen Ignagni, the president and chief executive officer of America’s Health Insurance Plans, an industry trade group.
The health care case is one of only six left to be decided from the Supreme Court term that began last October. Some of the other pending decisions also are huge, including a ruling on Arizona’s strict immigration law. But none is as complex as the challenge to the health care legislation, which spanned 2,700 pages when it passed Congress on a party-line vote two years ago. Even when boiled down into statute, the health care package covers 975 pages.
The Supreme Court’s deliberations, too, have been monumental. The six hours of oral arguments that stretched over three days in March were the most since the mid-1960s. The 136 amicus briefs filed by kibitzers ranging from the California Public Employees’ Retirement System to the Montana Shooting Sports Association set a court record.
Every interest group worth its salt already has its talking points and news releases prepared. Law schools and law firms are barraging journalists with experts prepared to opine. On recent decision days, the court’s press office has been more jam-packed with reporters since, perhaps, justices were deciding the outcome of the 2000 presidential election.
“This is a case about sovereign immunity and prudential standing; maybe not what you’ve all come for today,” Kagan announced playfully Monday to widespread laughter, as she read an unrelated decision.
Tantalizingly, the health care decision itself almost certainly has been made, at least in broad strokes. June 1 was the court’s unofficial deadline for draft opinions and June 15 was the unofficial deadline for dissents and concurring opinions. Whichever way it’s gone, the words definitely will flow. The divided 11th U.S. Circuit Court of Appeals needed 304 pages last year when it ruled on health care.
Four questions will be decided:
– The most predictable is whether the court should even consider the case in the first place. There’s a technical argument that the legal challenges are premature, but few expect that the court will let the historic moment simply fizzle out.
– The court then must decide whether two separate provisions survive. One is the famed individual mandate, which requires most adults either to buy insurance or pay a fee that would reach $695 by 2016. The other is a directive that states expand Medicaid coverage, at the risk of otherwise losing federal payments.
– Finally, if the court eliminates the individual mandate, justices must decide whether that measure can be severed from the law or the whole law goes down with it.
“The whole issue here is whether those (other) provisions . . . are so closely allied to one that has been held to be unconstitutional that they also have not been legitimately enacted,” Justice Antonin Scalia said during the oral arguments.
Republicans appear to be gaining the edge in the court of public opinion. Forty-four percent of people surveyed in mid-May voiced unfavorable views of the health care law, compared with 37 percent who voiced approval, according to the Kaiser Family Foundation. As a result, many voters will be unhappy whichever way the court rules.
Most Democrats would be happy if the law is upheld, while most Republicans would be happy if it’s thrown out, a June survey by the Pew Research Center for the People and the Press found.