Looking forward to the FreedomLibertyCare plan. (Flickr/Speaker John Boehner)
There seems to be a consensus building that the most likely outcome from the Supreme Court on the Affordable Care Act is that it will strike down the individual mandate but leave most of the law in place. Just how disruptive this will be to the near future of health care in America is open to debate (see Sarah Kliff for the optimistic take), but there's another question I'm wondering about: How are conservatives going to react?
An anti-Obamacare ad, in which a D-Day veteran explains how universal health insurance is as great a threat to our freedom as Nazism was.
When the Supreme Court issues its ruling on the constitutionality of the Affordable Care Act, we'll begin a new chapter in this saga, one that will probably (well, maybe) involve sorting through how the law's implementation will work once the individual mandate is struck down. But we've reached the point where there's no denying that the fight over public opinion has been lost, and that ground may never be regained no matter how hard the Obama administration or progressives might try.
Congressional Republicans discuss health care. (Flickr/nkenji)
The Supreme Court will rule on the constitutionality of the Affordable Care Act soon, and that has concentrated some Republicans' minds. It was all well and good to shout "repeal and replace!" when there wasn't really anything they could do about it, but if the Court actually strikes down some or all of the law, they'll be under greater pressure to put their money where their mouths are. The central quandary is this: if the law's least popular provision—the mandate for everyone to carry insurance—is struck down, that means the law's most popular provision—the requirement that insurance companies accept everyone, regardless of pre-existing conditions—has to go as well. Not only that, some other popular provisions, like the requirement that insurers allow young people up to age 26 to go on their parents' insurance, would disappear if the Court strikes down the whole law.
Should that happen, President Obama and other Democrats will immediately begin attacking Republicans for taking away these popular benefits. After all, the overturning of the ACA is a Republican project from start to finish, from the lawsuits brought by Republican attorneys general to the Republican judges on the Court who will undo it. So what do you do if you're a Republican member of Congress? Well, you start pretending that when you get around to that whole "replace" thing, you'll keep the stuff everybody likes.
Sometime soon—probably in three weeks or so—the Supreme Court is going to hand down its ruling on the Affordable Care Act. Given what happened at the oral arguments, there aren't too many people predicting that the ACA will be upheld, although that of course remains a possibility. Those oral arguments now seem like someone smacking us awake out of a dream in which we believed that the Republican-appointed justices might have something in mind other than the partisan and ideological advantage of their side. It was a weird dream, so weird that in the days before the arguments, some people seriously discussed the possibility that Antonin Scalia might be bound by the logic he had followed in previous cases involving the commerce clause and vote to uphold the law. What a joke.
Barack Obama and Mitt Romney's stances on health insurance mandates stand as one of the great ironies of the 2012 presidential race. At various points both have opposed the mandate and both have advocated for the idea, successfully forcing the measure into legislation. The only problem is that they have evolved in opposite directions.
I've written many times, by way of explaining congressional Republicans' actions on the issue of health care, that it just isn't something that conservatives as a group care very much about. They have other interests, like taxes and the military, that they'd much rather spend their time on. This may strike some as unfair, but I think it's pretty clear from everything that's happened over the last couple of decades that it's true. There are a few conservative health wonks, but not nearly as many as there are on the liberal side. I can't think of any conservative journalists who are deeply conversant with the policy challenges and details of the health care system, while on the liberal side we have a number of such people, like Ezra Klein and Jonathan Cohn. Liberals have organizations dedicated to reforming the health system and achieving universal coverage; conservatives have organizations dedicated to stopping liberals from reforming the health system and achieving universal coverage. Other than an eternal desire to limit the ability of patients to sue for malpractice (which is as much about hamstringing trial lawyers, who donate a lot of money to Democrats, as it is about improving health care), Republicans only propose anything intended to improve the health care system when political events make it impossible for them to remain silent.
Which is why it's reasonable to be highly skeptical whenever congressional Republicans start talking about what they'd like to do on health care. That's the proper spirit to take the latest news on how conservatives are positioning themselves:
Despite what the average voter probably thinks, presidential candidates keep the overwhelming majority of the promises they make. And most of the ones they don't keep aren't because they were just lying, but because circumstances changed or they tried to keep the promise and failed. But that's in the big, broad strokes, while the details are another matter. It's easy to put out a plan for, say, tax reform, but even if you achieve tax reform, it's Congress that has to pass it, and they will inevitably shape it to their own ends. This happened to a degree with President Obama's health care reform: it largely resembles what he proposed during the 2008 campaign, but not entirely. He had said he wanted a public option, for instance, but eventually jettisoned that, and had rejected an individual mandate, but eventually embraced it as unavoidable.
Which brings us to Mitt Romney's health care plan...
Forty-three Roman Catholic plaintiffs—including the archdiocese of New York and the University of Notre Dame—have filed lawsuits alleging that the Obama administration's contraceptive coverage requirements violate the First Amendment and the Religious Freedom Restoration Act.
Once the law is fully implemented, health care exchanges will be the part of the Affordable Care Act we likely notice most. The exchanges were designed to turn health insurance into something approximating a real market—unlike the current system which creates a myriad of blocks that prevent the consumers from purchasing health insurance as they would any good, forcing families to either receive insurance through their employer, pay exorbitant costs for individual, or go without any coverage. The exchanges—along with subsidies for low and middle-income Americans—will ease that burden, allowing consumers to select a plan from a central hub without worrying about pre-existing conditions affecting their coverage.
Maybe Republicans aren't so opposed to health care reform after all. After grandstanding against the Affordable Care Act for the past few years, Republicans aren't ready to let the entire bill die should the Supreme Court overturn the law later this summer. Congressional Republicans are crafting a contingency plan to reinstate some of the popular elements of the bill in that scenario, according to Politico. It's a clear indication that the GOP has learned the same lesson as Democrats: while the all-encompassing idea of Obamacare may fair poorly in the polls, voters typically support individual elements of the bill.
Jon Rauch has an imaginary dialogued with the late Ted Kennedy in which he argues that a Supreme Court decision striking down the Affordable Care Act (a k a the PPACA) might actually be good for liberals. "If the Supreme Court guts another important law and conservatives cheer even louder," Rauch argues, "their credibility as advocates of [judicial] restraint will be shot.” And, in addition, striking down the PPACA would put us on the path to national health insurance. Perhaps, then, striking down the PPACA is something that progressives should secretly wish for?
Planned Parenthood staffers might have been inclined to celebrate last Friday. That afternoon, the 5th Circuit Court of Appeals had ruled Texas could not exclude Planned Parenthood from its Women's Health Program. On Monday a district judge had granted an injunction, forcing the state to pay Planned Parenthood clinics that served the WHP clients—low-income women who are not pregnant. The injunction was short-lived—the state attorney general appealed the decision to the 5th Circuit, which granted an emergency stay, allowing state health officials to start kicking out the Planned Parenthood clinics.
Ronald Dworkin has an article defending the constitutionality of the Patient Protection and Affordable Care Act in the New York Review of Books that offers an excellent primer on the relevant issues. There are two sections I'd recommend in particular. First, in Section II Dworkin does the most lucid job I've seen so far in explaining why the "activity/inactivity" distinction made by the challengers is so weak: