As the Supreme Court considers the constitutionality of the federal health care law, one option that had seemed unthinkable to its designers and supporters now seems at least possible: that the court could strike down the entire law. Although it would be folly to predict what the court will conclude, policy experts, insurers, doctors and legislators are now seriously contemplating the repercussions of a complete change in course two years after the nation began to put the law into place.
Their concerns were heightened after three days of court arguments in which some justices expressed skepticism about whether the full law could stand without the individual mandate requiring almost everyone to have insurance.
“Many of us did not get the bill we wanted, but I think having to start over is worse than having to fix this,” said Robert Laszewski, a health care industry consultant and former insurance executive who opposed the bill.
Others say, however, the last two years have made it easier for Congress or the states to revisit the issue. The effort was not a waste of time, said Christine Pollack, vice president of government affairs at the Retail Industry Leaders Association, a trade group that represents large retailers and opposed the law. “There has been an important dialogue that has happened over the last three and a half years that has been a long time coming,” she said.
If the Supreme Court knocks out the guts of
the Affordable Care Act — the individual mandate requiring people to purchase health insurance or pay a fine — the battle within the Obama campaign will be fierce. The president will be faced with two stark alternatives: launch the political equivalent of a drone strike on the Supreme Court and use the ruling to energize his base, or accept the decision and move on, hoping to neutralize the divisive law in the general election.
In the first scenario,
President Obama would double down rather than back down. So far, he has shown no willingness to compromise on the individual mandate despite massive public opposition to the measure. In the face of a Supreme Court ruling against the law, a defiant president may seek to make an even more strident case for his vision for health care in America.
Already,
the talking points for a war on the high court are being put in place by organizations such as the Center for American Progress. The story line is simple and potentially effective: From
Bush v. Gore in 2000 to
the Citizens United decision in 2010 to the possible Obamacare ruling, the Supreme Court puts politics above the people in the name of the Constitution.
This argument could play among an electorate predisposed to suspect the worst.
A Bloomberg News survey taken shortly before the oral arguments found that 75 percent of Americans believe that politics will influence
the justices’ decision on the health-care law. If the court kills the act, then Washington is reduced to a triple play of gridlock — between the president, Congress and the Supreme Court, nothing gets done.
The Obama campaign could paint the court as out of step with the modern world, in which the state needs to help redress the inadequacies of global and national markets. After all, the mandate is about everyone paying their fair share toward health care; it eliminates free-riders from the system.
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