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SCOTUS/ACA: The Countdown (1)

Posted by John McDonough  May 29, 2012 11:35 PM

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Let's be clear.  June 2012 may be one of the most consequential months in U.S. health care policy history ever. This is the month the U.S. Supreme Court (SCOTUS) is expected to hand down its ruling on the Affordable Care Act (ACA/ObamaCare). Some expect the ruling in the first ten days of June, and some expect it in the final ten days, and nobody seems to expect it in the middle ten days.

By my count, there are eight possible Supreme Court outcomes, ordered from less to most impactful -- SCOTUS could:

  • Uphold the entire law;
  • Throw out the individual mandate;
  • Throw out the individual mandate and insurance market reforms such as the elimination of pre-existing conditions and medical underwriting;
  • Throw out the Medicaid expansions;
  • Throw out the Medicaid expansions and the individual mandate;
  • Throw out the Medicaid expansions, the individual mandate, and the insurance market reforms;
  • Throw out the individual mandate and other sections, and directs lower courts to determine what other ACA sections should be thrown out.
  • Throw out the entire Affordable Care Act.

That's my list -- you might have other options. I give each of these a .125 probability, or 12.5%, meaning, beats the heck out of me!

Meanwhile, Republicans who oppose the ACA are starting to consider what the heck they will do if the entire law is thrown out. Tea Party Favorite Rep. Allen West (R-FL) is in that group. He recently discussed what items in the ACA he thought should be restored if the SCOTUS throws out the entire law. He mentioned three items:

  • The ability for parents to keep their adult children on their health insurance policies until they reach age 26;
  • The closing of the Medicare Part D prescription drug coverage gap, also known as the "doughnut hole;"
  • The elimination of the ability of insurance companies to impose pre-existing condition exclusions on insurance consumers.

Cong. West's list is not his own -- some number of Republicans are agreeing with this trio.

All three of these items are absolutely valid and legitimate reforms included in the original ACA. Here's the interesting thing about these three -- they all primarily benefit the middle and upper class, not poor people who are, by far, the bulk of the nation's most vulnerable when it comes to health care security. The adult children provision only benefits families with insurance, and those with the ability to pay higher premiums for their dependents' continuing insurance benefits. Low income seniors are not subject to the doughnut hole -- that's mostly middle and upper income seniors. And pre-existing condition exclusions -- they span the income spectrum, though mostly threatens the non-poor.

All good and important reforms, common sense, smart. Here's what's missing from the Republicans' list: any concern for the plight of those most hurt by our insanely unjust health system -- lower income Americans.

Some Republicans are now getting cold feet about the reality that the SCOTUS actually might embrace their health care un-reform agenda, and are now looking to mitigate the damage of their demands.

Let's not let them off the hook. Health reform is about everyone. 

This blog is not written or edited by or the Boston Globe.
The author is solely responsible for the content.

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About the author

John E. McDonough is a professor of practice at the Harvard School of Public Health. He is the author of the book “Inside National Health Reform”, published in 2011 by More »


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