Monday, December 13, 2010

Reform law repeal? Unlikely; many benefits already in effect.

Since the Patient Protection and Affordable Care Act (PPACA, also known as the health reform law) was signed into law, its detractors have been bringing lawsuits everywhere they can find a willing prosecutor. More than 20 suits have been filed around the country, several of which have been dismissed (in Michigan and Virginia), and the majority of which are pending. On December 13th, the lawsuit in the Eastern District of Virginia was upheld when the judge ruled the mandate for individuals to buy insurance was unconstitutional, and that the Commerce Clause (regarding regulation of interstate finance) does not allow for a mandate to purchase health insurance (for a complete listing of lawsuits and their status, see The Washington Post). Other clauses are also an issue, but I'll leave that to the experts. Although the judge ruled that component of the law unconstitutional, the rest of the law is not affected.

Some constitutional scholars seem less than pleased with this ruling. Professor Stephen Schwinn, at the American Constitution Society Blog, notes that the decision goes far beyond a ruling on the individual mandate. He argues that the ruling is consistent with rolling back decades of judicial thought and returning the role of the courts to those of the first half of the 20th century. At that time, the Commerce Clause was defined quite narrowly, allowing the courts to obstruct congressional activity considerable. In the late 1930s, the courts moved to a more pliant interpretation of the Commerce Clause, taking into account the complexity of our modern economy. (Please read more about it here as I am not a lawyer). President Obama, himself a Constitutional scholar, clearly believes this law to be appropriate and within the mandates of the Constitution. There are, of course, some scholars who disagree and believe that requiring people to purchase health insurance is not allowed by the Commerce Clause. Most likely this will end up in the Supreme Court, according to policy watchers.

Most supporters of the PPACA believe that an individual mandate to buy insurance is required. Although the individual mandate was in part a bargaining chip to bring insurers on board to support health reform rather than bring their full advertising muscle against it, it also has value in making the system sustainable. If people are not required to buy health insurance but insurers are required to sell it to everyone regardless of their medical history, some people will simply wait until they’re ill to buy the insurance. If everyone does this, there won’t be enough money in the system to pay for expensive hospital stays or surgeries for those who are ill. As a result, everyone who does pay insurance will have to pay more to cover those who are sick, while others get a free ride. Worse, people may still not even buy insurance when they’re sick, then not pay their medical bills. Again, everyone else ends up having to pay more to make up for the people who don’t pay their part. (Here’s a helpful (if dry) video from the Kaiser Family Foundation that explains the concept of the individual mandate more thoroughly)

Nobody wants to have to pay for insurance, especially if they don’t think they need it. On the other hand, none of us want to see our friends, family, and neighbors suffer because they can’t afford to see a doctor. In addition, most people will qualify for coverage that is either free or significantly subsidized. Ironically, many of those calling for repeal are those who will have free health care in 2014 when the full effects of the law take place.

The health reform law is already benefiting many people, by requiring insurers to cover preventive services, eliminating pre-existing conditions for children, extending coverage to young adults, and creating special insurance plans for people with pre-existing conditions (see for details on all of these provisions). In 2014 it will benefit far more people, with improved eligibility for Medicaid, subsidized insurance options for the majority of Americans who are uninsured, elimination of denials for coverage for pre-existing conditions, and many other changes. (Find out how much you can expect to save with the Kaiser Foundation’s subsidy calculator)

The individual mandate is just one part of a large reform package meant to improve the way people get health care in the US. While its future remains uncertain, the remainder of the plan is intact, and many more benefits can be expected in the future.

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