More shocking than the actual decision to uphold the “individual mandate” portion of the health reform law has been the fact that there was so much doubt that it would be upheld. So convinced were the commentators (on Fox & CNN) that the law would be overturned that they prematurely reported its defeat rather than its triumph.
The legislation was designed on a solid constitutional footing and signed into law by a constitutional lawyer (i.e., President Obama) no less. The fact that there was so much doubt as to its constitutionality reveals a grander problem, which is the breakdown of the legitimacy of the Supreme Court as a neutral arbiter of the law. The Supreme Court instead appears to have become yet another stop in the political ping-pong match.
Nonetheless, just because the individual mandate has indeed been deemed constitutional (granted by a narrow 5-4 decision) does not mean that arch conservatives will stop in their attempts to undermine the law, nor that it will win in the court of public opinion. The idea of being arm-twisted into buying something that is still relatively expensive for one’s own good is unlikely to sit well with much of the American public. Furthermore, a slate of conservatives have renewed their vow to reverse or subvert the law, chief among them Republican Presidential Candidate, Mitt Romney.
Romney’s promise to undo “Obamacare,” is perhaps the second greatest irony in the aftermath of the Supreme Court decision (the first being that conservative Justice Roberts was the swing vote), given that the health reform law should be named “Romneycare” after its original chief architect, if we were according proper intellectual property rights. The individual mandate is already in effect in Massachusetts after Romney signed it into law in 2006.
The third great irony has been the unwavering support of the insurance companies for the individual mandate, which should clue you in to why perhaps a typically activist court didn’t seem so activist on this topic. Insurance companies support the mandate because it means many more paying customers for them, which they have been counting on to cover the expense of having to accept sicker enrollees with “pre-existing conditions.”
However, what has gotten less attention is the Court’s decision that urging states (through threat of withholding federal funds) to expand Medicaid eligibility to 133% of the federal poverty level (about $15,400) for all adults is unconstitutionally coercive. This decision will have the effect of limiting Medicaid participation, which already varies widely between red and blue states. The expansion of Medicaid eligibility was supposed to provide coverage for the other half of the currently uninsured- those too poor to be affected by the individual mandate, but who also “free ride” by not having health insurance and using the Emergency Room when absolutely necessary. Thus, what the Court upheld on one end, they began to slowly unravel on the other. If states choose not to expand Medicaid coverage, the dream of a “universal” system (however tenuous) could be out the window and millions of low-income individuals still struggling to find a means of meeting their health care needs.
Of course neither the individual mandate nor the Medicaid expansion will fix the broken U. S. health system, and in this sense the individual mandate ruling is a pyrrhic victory. The system, which still relies on a private, largely for-profit health insurance, wed primarily to employment, with highly cost-inflationary incentives built in, remains both economically unsustainable, and ethically unjust.
Ashley Fox is an Assistant Professor at the Mount Sinai School of Medicine, Department of Health Evidence and Policy.
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