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Published: January, 2012; Vol 8, Num 8

 

Elephant in the Room is Universal Care:

PPACA Goes to Supreme Court

Expected in June, the Supreme Court's decision on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) is already grabbing massive attention, mainly due to speculation about its possible impact on the nation's 2012 elections. Ultimately, however, the significance of this case will turn on whether it helps resolve the underlying issue of universal health care coverage.

Big Question

Among the key issues in President Obama's 2008 election and the Democrats' eventual passage of PPACA in 2010 was the nation's need to address the smoldering crisis of the uninsured.

About 16 percent of American adults have no health care coverage. Of course, they still might get sick, sometimes seriously, and when they do, they go to hospital emergency rooms that, under law, must provide treatment. Unable to pay for their care, these patients' expenses are transferred in non-transparent ways to other parties that have insurance.

Among those most burdened by these unseen transfers are union members and signatory employers who, together, pay for insurance through collective bargaining agreements. These transfers create an unfair competitive advantage for non-union employers who provide no insurance for their employees.

Costs and Coverage

Providing coverage to 50 million uninsured people was bound to cost money, and every special interest group lobbied Congress with its own view of how that should be accomplished. Ultimately, PPACA was a vast compromise, with many provisions loosely defined or with long-delayed implementation dates. One provision was an earned income tax on "Cadillac health plans" which many unions, including LIUNA, resisted because any comprehensive, collectively-bargained plan may, one day, be deemed a Cadillac plan.

Meanwhile, the law requires virtually all adults to carry insurance, including healthy young adults who, in many cases, would not otherwise buy insurance. Known as the "individual mandate" or "minimum coverage requirement," this provision expands the risk pool for insurance companies, making up for the law's requirement that insurers cover everyone, including those with pre-existing conditions.

Legal Angles

Typically, the Court sets aside an hour for oral arguments, but in a clear indication of the complexity of this case, it has set aside almost a full day.

Legal scholars on both sides agree that there would be no constitutional issue if the government had adopted some kind of "single payer" plan to achieve universal coverage. The Court has already ruled that similar plans for Social Security and Medicare are valid. The problem with PPACA is that Congress decided to tinker with the private market rather than abandon it.

To uphold the law in total, the Court must consider the constitutionality of its various parts. If it finds any parts unconstitutional, it will then decide if invalidating those parts invalidates the whole law or whether the remainder is constitutional. A key provision is the individual mandate. A U.S. District Court in Florida overturned this mandate and concluded that the entire law is invalid, yet the 11th Circuit Court of Appeals affirmed the lower court decision on the mandate but said the rest of the law could go forward. That rationale provoked consternation among the 26 states that are suing the Administration because virtually every provision of the law is predicated on the aim of universal coverage.

The Court may avoid the delicacy of all the law's issues by accepting the rationale of some of its own past decisions that it cannot intervene until the law causes real harm or penalties to some party. That would mean making no decision on the merits until penalty provisions take effect, sometime after 2015.

Whatever the Supreme Court's decision, dissatisfaction and rancor are inevitable. Special interest groups and politicians will spin it to their own needs, and the issue will merge into the electoral debate over austerity, taxes, spending, accountability and justice.

After next fall's election, the big question will remain: how do we achieve effective universal health care coverage? It remains to be seen if and to what extent PPACA is the answer.

[Steve Clark]