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Tag: The Supreme Court Challenge

What Makes Health Care Different

By Donna Dubinsky

As best as I can tell, the arguments at the Supreme Court did not touch on a critical part of the discussion about government’s role in health care: the broken market for private insurance. And I think I know why.

A key assumption underlying the arguments, questions and answers was that all uninsured people are uninsured by choice. Sure, some very ill people with preexisting conditions do not qualify. But the implication was clear: Most uninsured people either do not want to pay for insurance or cannot afford it. Justice Samuel Alito said, “You can get health insurance.” Justice Ruth Bader Ginsburg made the point that people who don’t participate are making it more expensive for others, that their “free choice” affects others. The “free rider” problem is thoroughly examined.

It was as if the court forgot that the private insurance market does not function as a normal market. If you are not employed and you want to purchase insurance in the private market, you cannot unilaterally decide to do so. An insurer has to accept you as a customer. And quite often, they don’t. Insurers prefer group plans, with lots of people enrolled to spread the risk. Can you blame them? The individual consumer is a lot of work, is a higher risk and produces relatively little revenue.

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Will Healthcare Law Pit Obama vs. Roberts?

By James F. Simon

President Franklin D. Roosevelt reacted with fury when major legislative pillars of his New Deal were declared unconstitutional by a Supreme Court anchored by four ideological conservatives. He lashed out at the justices, accusing them of practicing crass politics disguised as constitutional law.

Seventy-five years ago last month, FDR proposed his ill-fated court-packing plan that would have allowed him to stack the court with new appointees sympathetic to the New Deal.

Will history be repeated this term when the Roberts court decides the constitutional fate of President Obama’s signature legislation, the Affordable Health Care Act?

The justices will hear five-and-a-half hours of arguments over three days, March 26-28, on the healthcare law and deliver their judgment by the end of the term. If the court strikes down all or part of the law, Obama, like FDR before him, will almost certainly denounce the court’s decision. After all, he has already had practice in publicly criticizing the court. At his 2010 State of the Union address, with the justices sitting directly in front of him, he accused the court majority in the Citizens United decision of reversing a century of constitutional law to open “the floodgates for special interests… to spend without limit in our elections.”

Besides the willingness of both FDR and Obama to criticize the court, there are other parallels between the two Democratic presidents. Both came to office as liberal reformers who envisioned a large role for the federal government in promoting the nation’s welfare. But in defending their policies, they revealed their very different political styles and temperaments.

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Supreme Court Needn’t Fear Healthcare Law’s Individual Mandate Provision

By Vikram Amar and Alan Brownstein

The Affordable Care Act faced a possibly fatal challenge when the constitutionality of its individual mandate provision was argued in the Supreme Court.

Much of the terrain was easy going. Neither the justices nor the lawyers doubted that the healthcare and healthcare insurance markets involve interstate commerce — insurance and healthcare providers are usually national or at least regional operations, folks who cross state lines get sick and must be cared for away from home regularly, and people are often unable to relocate to another state for fear of losing employer-based coverage. Nor was it disputed that the mandate was sincerely motivated by and closely related to the regulation of these interstate markets. Those two conclusions are usually sufficient to justify the exercise of congressional power under the commerce clause of the Constitution.

But then things got more treacherous. The problem, suggested by numerous questions from the conservative justices on the court, was the slippery slope they saw created by the mandate — the idea that Congress was requiring individuals to buy something. If the feds can require each person to buy health insurance, what can’t they force people to purchase?

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Halbig corpus interruptus

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By Matthew Holt

In more stunning proof that America’s 18th century style governing process just doesn’t work, a subset of a regional Federal court ruled against part of Obamacare. The Halbig ruling is certain to be overturned by the full DC court and then probably will stay that way after it makes it’s way through the Supremes–at least Jonathan Cohn thinks so.

But think about what the Halbig ruling is about. Its proponents say that when Congress (well, just the Senate actually as it was their version of the bill that passed) designed the ACA, they wanted states only to run exchanges and only people buying via states to get subsidies. But that they also wanted a Federal exchange for those states that couldn’t or (as it turned out) wouldn’t create their own. But apparently they meant that subsidies wouldn’t be available on the Federal exchange. That would just sail through Logic 101 at any high school. Well only if the teacher was asleep, as apparently most Senators were.

Now two judges interpret what was written down to imply that subsidies should only be available on state exchanges–even though logic, basic common sense and fairness would dictate that if we’re going to subsidize health insurance we should do it for everyone regardless of geography.

Don’t forget that in the House version of the bill there was only a Federal exchange. Continue reading…

Is the Fact that I Am a Woman Considered a Pre-Existing Condition?

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By Maggie Mahar

The male body has long been considered the “standard” for health care coverage. Having a woman’s body is seen as an expensive anomaly, and women pay dearly for being different.

When they buy their own health insurance in the individual market, women must lay out an extra $1 billion a year, simply because they are women. Some argue that this is fair: after all, a woman could become pregnant, and labor and delivery are costly.

But the truth is that, even when maternity benefits are excluded, one-third of all health plans charge women at least 30 percent more, according to a report released just last month by the National Women’s Law Center.

In 36 states, “92 percent of best-selling plans charge 40-year-old women more than 40-year-old men,” the Center reports, and “only 3 percent of these plans cover maternity services … One plan in South Dakota charges a woman $1252.80 more a year than a 40-year-old man for the same coverage.”

Today, less than half of American women can obtain affordable insurance through a job, which explains why millions buy their own insurance in the individual market. In that market, just 14 states ban gender rating:  California, Colorado, Maine, Massachusetts, Minnesota, Montana, New Hampshire, New Mexico, New Jersey, New York, North Dakota, Oregon, Vermont, and Washington.

Pricing based on gender also plagues the small group market, where insurers frequently jack up premiums if a small or mid-size business employs too many women. This means that many of these employers just can not afford to offer insurance. Only 17 states address the problem.

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Latest CBO Report on Health Law Adds to Business Uncertainty

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By Matt Barry

Photograph by William B. Plowman/Redux
The Congressional Budget Office’s new estimates of the budgetary impact of the Affordable Care Act, made in the wake of the Supreme Court’s ruling last month, glides right by one obvious fact: the budget analysts really have no idea how the court ruling will affect their previous estimates.

The CBO report says very clearly that “what states will be able to do and what they will decide to do are both highly uncertain.” Translation? They don’t know any more than anyone else right now about how states will act, now that the high court has determined that the federal government can’t force states to participate in the expansion of Medicaid by withholding the federal share for existing activities.

CBO isn’t to blame for this uncertainty. Rather, they should be commended for their candor in acknowledging the degree of uncertainty that remains. Most news reports and commentaries on the new CBO findings have downplayed or ignored this problem.

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How One Man Wound Up Deciding the Fate of Healthcare Reform

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By Maggie Mahar

Personally, I am delighted that Chief Justice Roberts voted to uphold the Affordable Care Act. But, I am troubled that the fate of U.S. healthcare turned on one man’s opinion. This is not how things are supposed to work in a democracy.

Healthcare represents 16 percent of our economy. It touches all of our lives. If we don’t like the laws our elected representatives pass, we can vote them out of office. The Supreme Court, on the other hand, doesn’t have to worry whether its decisions reflect the will of the people. The Justices are appointed for life. This is why they are not charged with setting public policy.

How then, did the Court wind up with the power to affirm or overturn the ACA?

The media shapes our expectations

As I suggested when oral arguments began back in March, a “media narrative” drove the case to the Court – a fiction that caught on, in the press, on television, and in the blogosphere, where it began to take on a reality of its own. A handful of “state attorneys general and governors” saw “a political opportunity” and floated the idea that the law might be unconstitutional. The media picked up the story, repeated the heated rhetoric, and “fanned the flames … Before long, what constitutional experts thought was a non-story became a Supreme Court case.”

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Are Fewer People in MA Paying the Individual Mandate Penalty?

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By Josh Archambault

Since the Supreme Court upheld the ACA/Obamacare, there has been a renewed interest in the Massachusetts healthcare law. I have blogged many times before to caution readers and the media not to assume the two laws will lead to the same results, because they won’t, mostly as Massachusetts is not the same patient with the same ailments as New Mexico, or Michigan, or even Florida.

I know I am fighting against the conventional wisdom,  but this issue warrants discussion as Congress passed a national program and modeled the behavior and cost estimates (incorrectly in my opinion) partially on our experience here in the Bay State.

As a result of the national interest, I assume we will see more local reports on Romneycare. On cue, WBUR’s CommonHealth Blog put up:

5 Quick Facts About Mass. Health Reform You Now Need To Know

One of the facts cited is the decrease in the number of Massachusetts residents paying the individual mandate penalty.

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How the United States Supreme Court Saved My Life

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By Spike Dolomite Ward

Not to be overly dramatic, but for me the Supreme Court decision on the Affordable Care Act was a matter of life and death. Because the law was largely upheld, I will be able to continue receiving treatment for breast cancer.

I was one of the early beneficiaries of the law. When I was diagnosed with an aggressive form of breast cancer late last year, I had no health insurance, which meant my options were extremely limited. No insurer would pick up someone in my circumstances. But luckily, the Pre-existing Condition Insurance Plan had already kicked in, and it made it possible for me to purchase insurance under a government program.

I was uninsured not because I’m a lazy, freeloading deadbeat but because my husband and I are self-employed. We had been purchasing health insurance on the individual market along with 6% of the rest of the population. But after exhausting all of our resources trying to keep up with premiums of $1,500 a month, we had no choice but to cancel it.

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States Should Opt Out of Medicaid — All The Way Out

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By Merrill Goozner

With over a dozen conservative states leaning against expanding Medicaid to cover poor workers without health insurance, perhaps it is time to resuscitate an idea embraced by President Ronald Reagan. Let the federal government take over Medicaid lock, stock and barrel.

In 1982 the president who ushered in the modern conservative era offered to assume federal responsibility for the program that now consumes over 22 percent of state government budgets in exchange for states taking over welfare. His offer built on a series of recommendations going back to 1969 by the U.S. Advisory Commission on Intergovernmental Relations, which called for a federal takeover of all public assistance programs.

President Obama’s health care reform law, if it survives the final hurdle of next November’s election, could give that idea new life. Under the Affordable Care Act, states are responsible for creating insurance exchanges where individuals and businesses can buy individual or group health plans.

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