The Possibility of a Nuanced Ruling

Supreme Court questioning was sharp on the individual health care mandate, but justices could weigh broader circumstances and reach a more nuanced decision.Most media focused last week on oral arguments before the U.S. Supreme Court on the controversial federal health insurance mandate for individual Americans. However, justices also heard arguments on other aspects of the legal challenge to what has become known as ObamaCare that could lead to a more nuanced decision and perhaps even more complexity for states.

Justices listened to arguments on whether the constitutional challenge of the individual mandate is ripe because it hasn't gone into effect yet. Commentators expressed doubt the court would effectively punt a big decision for this reason. They also considered the severability of the federal health care reform act. They wanted to know if voiding the individual mandate would void the popular ban on excluding health insurance because of pre-existing conditions. 

A ruling isn't expected until late June, which will allow for a lot of media speculation, political bombast and unease by state officials who will play a key role in implementing health care reform in whatever form it survives from the court case.

Based on the intense questioning by justices and the balky performance of the U.S. attorney arguing the government's case, you could easily conclude the federal individual health insurance mandate is in trouble. The court seems clearly split, but the split echoing from the questioning suggests at best a 5-4 rejection of the mandate.

However, the mandate underpins a grander bargain. Creating the largest possible pool of people with health insurance coverage gives health insurers the ability to absorb and spread costs, including from new insureds who may be combating cancer or suffering from a chronic disease. Dispatching the mandate could put even more pressure on health insurance premiums, which are continuing to rise. That, in turn, could erode the quality of existing employer-provided health insurance and, in some cases, cause employers to drop coverage for employees altogether.

The unspoken part of the story crowded out by commentary on the mandate is what happens if we return to the status quo before Congress approved ObamaCare. The truth is, that status quo has disappeared. 

  • The exclusion of pre-existing conditions and expansion of family coverage to children up to age 26 are very popular provisions, which few would want to lose — especially in an election year.

  • Many employers facing stiff domestic and international competition are looking for ways to trim their health insurance costs. One way is to hire temporary workers without benefits.

  • The public safety net has more holes in it, as Medicaid participation has been limited and funding cut for public health care clinics.

  • Heath care technology continues its steady march ahead, opening new diagnostic and treatment options and adding more costs.

While it is tempting to imagine Supreme Court justices ruling in a political vacuum, they usually don't. As post-Civil War pragmatist Justice Oliver Wendell Holmes argued, "The life of the law has not been logic; it has been experience."

America's experience with universal access to health care — and health care insurance or some other form of payment — has not been a textbook example of success. Nor has it been one of consistency. The idea of an individual health care mandate was hatched by the Heritage Foundation, a conservative think-tank, as a way to ensure personal responsibility.

Former Oregon Senator Gordon Smith simplified the dilemma that has perplexed Americans and their political leaders for generations. He said there are only three basic ways to ensure universal health care access and the financing to pay for it — a government-run health system; a system with some people covered by private employer-provided health insurance and the rest under a public safety net; and an individual mandate requiring everyone to pay for some form of coverage offered by private insurers.

Only a sliver of Americans would opt for a government-run health system (even though Medicare and Medicaid are the 800-pound gorillas in the private system). If the individual mandate is tossed overboard, that basically leaves the existing makeshift system of shrinking private employer-provided health insurance and a tattered public-health network. 

It is hard to imagine how U.S, employers can become more globally competitive as they face ever-increasing health care premiums. So they will continue, if not accelerate, moves to limit their role in providing health insurance. That will put even more cost-shifting pressure on employers who stick with coverage. It also might make the health-insurance exchanges that states such as Oregon are implementing shopping centers without many customers.

With a growing number of people relying on public health care services, politicians will be under pressure to increase budgets. That fight will be most intense at the state and local levels of government because they are closer to the actual delivery of health care services and the patients who depend on those services.

The opponents of a federal individual health insurance mandate may find the alternative politically and fiscally less appealing. So eventually might a majority of Supreme Court justices, even as they fret over extension of federal power.

We agreed to let the federal government build an interstate highway system because it made it easier for Americans and the products they use to move about the nation. The same rationale may come to prevail on health care on grounds that if somebody gets sick, we all wind up paying for it anyway.