Can I Count on Health Reform Meeting Constitutional Muster?

Dear Cheasty, I am a health care advocate for low-income families in Texas. I am excited about the Affordable Care Act because it will help so many of the people I work with. But with all the lawsuits and questions about whether the law is constitutional, I’m not sure if I can count on the health care reforms I am looking forward to. Even worse, I’m not sure what to tell my clients when they ask me about it. What do you think? Can we count on Obamacare, or is it a game of wait-and-see?

Sincerely, Anxious About the ACA

Dear AAtACA,

I hear you, my friend. For a while there it seemed like every other week a new ruling was coming out on the Affordable Care Act. One would give it the green light, another would shoot it down. A third would come along and deep-six the individual mandate. It was a courtroom roller coaster, and it made everybody feel pretty unsettled.

Fortunately, I have some feedback that might make you feel a little better. First of all, stop keeping a running tally of court rulings. It doesn’t matter how many courts have ruled on the ACA, or what the “scorecard” is on the constitutionality question. The U.S. Supreme Court has decided to hear the case against the ACA in the spring of 2012, so the only decision that will matter in the end is this one, and we can expect a decision in late June of 2012. Six months, and all this hand-wringing will be over!

I haven’t got a crystal ball, but when it comes to predicting a Supreme Court decision on ACA, I think there is room for optimism. There are nine Justices. Some court experts believe that four are squarely against the ACA, and four will likely vote in favor of it. The expected “swing vote” in this scenario is Justice Kennedy, and he has a long history ofvoting in favor of strong federal powers, including oversight of interstate commerce (for more information, please read this by Dr. Fazal Khan, a health law professor at the University of Georgia). Since the Individual Mandate hinges on that particular power, I personally, and many of the smart folks I work with, are reasonably optimistic that when the SC issues its ruling in June of 2012, health reform advocates will have good reason to celebrate.

If you want to get a little more into the weeds on the issue of constitutionality, I encourage you to read this recent op-ed in the New York Times by Harvard Law Professor Einer Elhauge, as his explanation is mercifully free of the jargon and “legalese” that many explanations and arguments use to explain their point.

But all right, I hear you. What if we’re wrong? What if the Supreme Court overturns the Individual Mandate? Or what if they strike down the entire law as unconstitutional? As unlikely as I think that is, it’s a fair question. What would happen then?

All I can say for sure is that work that advocates like you have already done, AAtACA, has built tremendous popular will to reform the current health care system in one way or another. Also, the benefits that Americans have already experienced as a part of Obamacare – keeping young adults on their parents’ insurance until they’re 26, no pre-existing conditions for kids, no co-pays for preventive screening in Medicare, the closing of the donut hole, etc, etc – have started making people aware of how much they stand to gain for themselves, for their families, and for their communities. Hospitals have started looking forward to a day in which their huge pool of uncompensated care starts to shrink. The work that state governments and agencies have done to get ready for ACA is underway. (Though Texas lags behind, many states already have Exchange legislation ready to go!) But most importantly, the idea that all Americans have the right to quality affordable health insurance has now entered the national conversation. The understanding that the old system is broken is now legitimized, and it’s here to stay. It would be tremendously difficult for Congress to repeal the law in its entirety, or try to return to the status quo without incurring the wrath of a good portion of their constituency.

So what can we do now to make sure we keep our hard-fought health reform? Keep working. Keep talking. Keep encouraging people to speak out for the kind of health care system we as Americans deserve – the kind that makes health care affordable and accessible to all.

To a well and healthy Texas, Cheasty Anderson