What if the Supreme Court…..?
On Wednesday, March 28th, three days of argument ended at the Supreme Court over the Affordable Care Act (ACA) Given the hostility shown a number of Supreme Court Justices, there is every chance that at least the individual mandate will be invalidated.
There is a whole bunch of hand-wringing that will go on if the mandate is toasted, but let’s take a little look back at just where this mandate came from. Many reform advocates initially focused on a much stronger role for the government in the reform, either through a single payer plan or a strong public insurance option. When Congress decided to implement exchanges with a primary role for private insurance companies, they had to dress the thing up a bit in order to make it work. One way to do that was to mandate that everyone who could possibly afford it be required to buy private insurance.
If that requirement goes away, the insurance companies will begin to whine about how they cannot possibly make this work and how they have to find some other way. It is absolutely critical that progressives get out ahead of this discussion or the insurance companies will define this debate.
Advocates inside the D.C. Beltway have been avoiding a discussion of this possibility in order to maintain a confident unanimity – “no problem, everything is going to be OK.” As a result of this approach, there has been little or no discussion among health reform advocates about where to turn if the ACA loses.
It’s time to strike up the band here: “Why not a public option?”
Remember the great debate during the passage of health care reform – should the government create an insurance option run by and for the public? Remember that the public plan based on Medicare rates would save $110 billion over 10 years? The public plan also had the virtue of being accessible with premiums from 5% to 7% lower than premiums in private plans. 1
Remember how the ACA was supposed to cut the cost of health care by getting everyone covered so that care ultimately given in emergency rooms was absorbed by the new insurance system, instead of shifting it to everyone else in increased premiums?
Remember how a couple of conservative Democrats along with Joe Lieberman decided to kill the public option because the insurance industry did not like it in spite of the fact that is saved everyone money, gave everyone access to coverage, cut the deficits, and reduced rates of the uninsured?
Remember how the insurance industry acted as though they would support the law so long as the individual mandates were substituted for a public option – and then secretly slipped $86 million to the Chamber of Commerce to oppose the people who voted for the Act?
If the Court does invalidate the individual mandate, there should be an immediate call for a public plan and, this time, no compromises with a greedy and dishonest insurance industry. We need to show the conservative ideologues on the Supreme Court that their judicial activism has forced the health care debate to the left rather than to the right.
Progressives should also take this case to the states, where public options can be fashioned without federal assistance. Those states that have done the right thing by beginning to implement exchanges will now realize that the guaranteed benefits of the reform, and its reach as a tool for eliminating health disparities, cannot be achieved without a public insurance option. States that have had the sense to begin creating insurance exchanges can go right ahead and substitute a public plan for a mandate.
 Congressional Budget Office, “Analysis of a Proposal to Offer a Public Plan Through the New Health Insurance Exchanges” July 22, 2010.