By Glenn A. Tung, M.D.
There are two important legal issues that the Supreme Court will rule on this week: 1) whether the federal government has the power to require (or “mandate”) you and me to purchase health insurance, and 2) if it does not have this authority, whether the individual mandate to purchase healthcare insurance can be disentangled or severed from other parts of the Affordable Care Act.
Our Constitution grants the federal government limited powers, but one big power is the authority to regulate commerce between states. This includes the power to regulate some commerce within a state if it is essential to the larger regulation of interstate commerce. So the first big legal question is whether the federal government can require its citizens to purchase healthcare insurance by its authority to regulate interstate commerce. It is important to remember that the states will still retain the power to regulate commerce within their own borders. So on a state-by-state basis, the requirement to purchase healthcare insurance will likely continue irrespective the court’s ruling this week.
On the issue of whether the individual mandate can be overruled but other provisions of act can stand (“severability”), the court could rule that 1) the individual mandate is completely severable and therefore all the other provisions of the law may stand on their own, at least for now; 2) the individual mandate is partially-severable and that some provisions of the law can stand but others must be overruled along with the individual mandate; or 3) the individual mandate cannot be separated and thus the entire act is unconstitutional. On this legal issue, the Obama administration has argued that the individual mandate is partially severable because key insurance market reforms are critically dependent on it. Obama argues that the individual mandate is essential to the provision that insurance companies (payers) cannot deny coverage or charge unreasonably high premiums because of a pre-existing condition. If healthy people are not required to buy insurance and only buy it when they become ill, then insurance premiums will become way too expensive, payers will limit coverage in the policies they sell or both.
The ruling will also have implications for future legislation based on the commerce authority of the federal government and on unwritten tenets of “judicial respect” — the interpretation of legislative prerogative and intent by the judiciary. Pretty serious stuff.
Some ask whether there really are any benefits to having healthcare insurance. On this question a recent Oregon Health Study concluded that the newly insured, particularly those who are poor, are 40 percent less likely to borrow money or skip paying other bills in order to cover their medical bills; 25 percent less likely to have an unpaid medical bill sent to a collection agency; more likely to describe their health as good or getting better; and more likely to have a primary care provider and less likely to use expensive emergency room for care. Unnecessary or preventable emergency use costs some $38 billion a year.
It is also important to keep in mind that while the bulk of the Affordable Care Act is not scheduled to go into effect until 2014, many innovative provisions of the law are already in place and will continue irrespective of the court’s ruling. I believe that nascent state health insurance exchanges and accountable care organizations and the focus on comparative effectiveness research and patient-centered quality outcomes will continue albeit with less vigor. For particulars on this question, read the June 18, 2012, Boston Globe article titled “Insurers to stay with key benefits; Mass cushioned if court rejects US health law.” Massachusetts Blue Cross/Blue Shield, Harvard Pilgrim, and Tufts Health Plan are likely to continue to permit young adults up to age 26 to stay on their parents’ insurance plans and to cover some important preventative services like immunizations and screening for diabetes, depression, and colorectal cancer without copays. However, many new or expanded programs depend on provisions of the act; if it is overturned, these efforts to control healthcare costs and improve quality would be hurt. For example, as of February 22, Massachusetts received or was promised $199 million in grants from the act for new or expanded programs including $100 million for support services to move hundreds of elderly and disabled from institutional settings to community-based care. Other grants would address childhood obesity, expand support for teen mothers, and train health workers. Although Massachusetts already has a viable health insurance exchange, the Affordable Care Act would support expansion of the Mass Connector to help the working poor — those who make up to 400 percent of the federal poverty level — to purchase health insurance. In addition Community Health Centers in Massachusetts have received $4.5 million for expanded operations and $77.2 million for construction projects, and the federal law tripled the number of clinicians serving in the National Health Services Corps.
Shortly, we will learn about a landmark ruling of the court that will not only influence healthcare delivery and define the court for decades, but will more than likely impact the outcome of the Presidential election this November.