There’s no quick solution if court rejects health-care act

The decision most likely has al- ready been made, the justices of the Supreme Court of the United States having met Friday morning to vote on the challenges raised to the constitutionality of the Patient Protection and Affordable Care Act.

It won’t be until late June that the court releases what is sure to be a lengthy ruling, with dissents coming from whichever side failed to cobble together the five votes necessary for a majority.

A majority of last week’s court observers seemed to think the health-care act is in danger, based on questions asked by the justices and their demeanor, along with that of the lawyers involved.

But predicting how the court will vote is risky business. The safest bet today would seem to be that four of the justices were more than skeptical about the constitutionality of the individual mandate, a requirement that every American either contract for health-insurance coverage or face a penalty. Four others were more inclined to see the value of the mandate. Those divisions were clearly arguable even before the act was passed, based on the known judicial philosophy of the justices.

The fifth vote is that of Justice Edward Kennedy, the court’s swing vote in recent years. And much was made about his observation during oral arguments that the individual mandate is “a step beyond what our cases have allowed.”

The mandate requires that taxpayers obtain a minimum level of health coverage by 2014, after which those who don’t comply would face fees that start at $95 in 2015 and rise to $695 by 2016. The fee could also be tied to a percentage of household income.

What’s affordable

The problem with the mandate is two-fold. First, conservatives see it as an assault on individual liberty antithetical to the principles on which the nation was founded. Second, it is the underpinning for all long-term cost estimates of comprehensive health-care reform. Even if the Supreme Court allows most of the health-care act to stand, if it takes away the individual mandate, it makes everything else unaffordable.

And included in “everything else” are things such as barring insurers from denying coverage of pre-existing conditions, requiring that young adults up to age 26 be allowed to stay on their parents’ policies, eliminating a “donut hole” that can drive up the cost of prescription coverage for some Medicare recipients.

Even some conservative politicians don’t want to see provisions such as those lost to their constituents. But they’d also be hard put to explain how those benefits can be paid for if everyone isn’t required to be insured.

Complicating the politics of all this is the fact that the individual mandate came to life as a politically conservative proposition, one that was seen as infinitely preferable to European-style universal coverage, or, as it is sometimes called here, Medicare for all.

The White House says President Barack Obama’s administration has devised no contingency plans to address a finding by the Supreme Court that the law is unconstitutional. While Republican presidential candidates have been fond of attacking “Obamacare,” none has suggested what he would do to address the systemic problems in health care in the United States. The cost of health insurance paid for by employers has been doubling every seven to 10 years.

While this health-care bill is flawed, it was the product of nearly 40 years of attempted reforms by presidents dating to Richard Nixon.

If the Supreme Court essentially tells Congress to start over, it will be another decade, perhaps another generation, before the next comprehensive bill comes out of Congress. And before it, too, inevitably ends up before another Supreme Court.