Health reform - Genie is out of the bottle

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What the Court decides is of course important but the rising tide of public expectations regarding who and what insurance covers and at what cost is a genie that is out of its bottle. The new normal is defined by widening coverage of preventive services and senior’s prescription drug costs, protections against hidden exclusions and coverage caps that leave even the insured vulnerable to bankruptcy, and a host of other new benefits and safeguards. Here are three scenarios of Supreme Court decisions and how our states and communities might respond.

Affordable Care Act is upheld

Snap judgments about car wrecks and train crashes belies a more sober reading of transcripts of the Supreme Court’s questioning that shows more balance and a recognition that reform is about “matters of degree” rather than categorical choices among multiple and competing priorities – liberty and the practical necessity to fix a collapsing health system that we all use at some point. Appellate court oral arguments showed a similar (or even harsher) mix of questions and three of four ultimately decided to uphold the entire law, with the fourth striking only the individual mandate. The lesson – don’t be stampeded into assuming a dire Court ruling.

Individual mandate is struck but the rest of health reform is upheld

Health reform is much more than the individual mandate, though the skilled presentation of the case for repeal created that profound misperception. The mandate is only means to an end – expanding insurance coverage to include not only the sick but also the healthy who will one day need care. Congress thought it was the best means to producing wide participation and broad insurance pools but there are alternatives, such as open enrollment with penalties for late enrollment. Even if Congress did not to replace the mandate, states could choose to follow Massachusetts’ example in creating a state mandate or to consider other strategies.

Upholding the guts of health reform would make it possible to move forward with a host of cost control measures that collectively represent the most comprehensive effort to date to stem medical inflation. Saving business and government payers from financial catastrophe is an indispensable component of health reform.

Health reform’s expansion of Medicaid represents the largest social welfare development in at least a generation, extending medical coverage to 16 million Americans. Press coverage gave the Supreme Court’s handling of Medicaid much less attention than earlier sessions, seemingly uninterested in the more moderate mix of questions by the Justices.

The lesson – the individual mandate is one, independent component of an ambitious package of reforms. Don’t jump to conclusions based on tough Court questions about it.

Repeal of health reform

Even with this worst case scenario, health reform continues. While some states may take a break if the law is struck down, many states have embraced health reform as their own cause. California, Oregon, Washington, Maryland, Vermont, Rhode Island, New York, Colorado, Connecticut, and others are aspiring to be the next Massachusetts where reform continues to be massively popular.

While conservatives will celebrate Court nullification of the Affordable Care Act, it will be hard for the next Congress to deny the inexorable march of states to do what Massachusetts did -- leverage federal resources to build a new exchange marketplace and develop strategies for expanding coverage and controlling costs.

A sweeping court ruling may also have unanticipated consequences. National Republicans may find themselves targeted for a backlash if they fail to meet the new public expectations of coverage and protections. And, they may face an energized and more unified health reform campaign to expand Medicare to more or all Americans in response to a Court ruling that eliminates moderate market regulations.

Jacobs is a professor at the Humphrey School of Public Affairs, University of Minnesota. Ario is managing director of Manatt Health Solutions and the former director of Office of Health Insurance Exchanges.