Democrats and supporters of President Obama’s health care law are preparing a variety of contingency plans — messaging and legislative strategy — in the event that the Supreme Court strikes part or all of the Affordable Care Act.
But like Republicans — who are torn over how to respond in the event that the Court doesn’t fully uphold the law — supporters of the law haven’t settled on a single approach. And with a ruling expected next week, it now appears likely that Democrats and health care reformers will lack a unified message or an all-hands-on-deck strategy if the individual mandate falls.
The prevailing view among policy experts and industry insiders is that if the mandate falls, the rest of the health care law becomes unsustainable. A phenomenon known as adverse selection will dominate the insurance market when younger, healthier people opt not to purchase insurance, premiums will spike, and the market will enter a death spiral. If the court strikes the mandate, they say, Congress or the states will have less than two years to figure out how to replace it, or the insurance industry’s in for some big problems.
That’s why authors of the law take a dim view of its future when they speculate that the Court might rule against them. They worry that the best and most popular provisions of the ACA will be jeopardized unless the whole thing is upheld.
“[T]o borrow a Supreme Court metaphor, you have to eat your vegetables. You have to have the mandate in order for this to work from a financial standpoint,” explained House Minority Leader Nancy Pelosi. “The biggest difference in the lives of the American people - well, let me say one of, in terms of this legislation, is that you cannot be deprived of coverage if you have a preexisting medical condition. This is huge. This is huge. And insurance companies even say that they really can’t do that unless the premiums skyrocket. So, if the American people like the idea that they and their children for a lifetime cannot be deprived of health care, health insurance because of a preexisting medical condition, then that will require some other action in order for that to happen…. So, let’s hope and pray that the Court will love the Constitution more than it loved broccoli and that we will have a decision that is based on the merits and the Constitution of the United States.”
“The reason Romney did what he did in Massachusetts and have a mandate was because the program would not work [otherwise],” explained House Minority Whip Steny Hoyer.
Other supporters of the law take a different view, and are encouraging a sunnier approach.
“I strongly support the mandate. I think it’s important. I think it promotes a very important purpose of making sure that insurance pools are more even handed in terms of age spread of people who have insurance,” explained Ron Pollack, Executive Director of the health reform advocacy group Families USA. “Most of the public and a significant part of the media coverage about the litigation — which obviously is overwhelmingly focused on the mandate — would give the impression that the mandate is the heart of the Affordable Care Act. It isn’t close to that. is it the most controversial? Most certainly. But is it the heart of the Affordable Care Act. no it’s not even close.”
Pollack wants to impress this on the law’s supporters, so that they don’t worry about the future of the law, and so that they don’t convince beneficiaries that the law’s been crippled.
“The reason I have commented about this…is that if the Court decides that the mandate should be struck, whatever compels the court to make what I think would be a lousy decision that conflicts with decades of precedent, i don’t want people to therefore assume that the heart of the Affordable Care Act is not moving forward,” Pollack told TPM. “I think it’s even more important in terms of the job that lies ahead for us, making sure that all the people that are uninsured, who stand to benefit from the act, make sure they know there’s something there for them.”
Pollack is on the board of directors of the group Enroll America, a non-profit devoted to removing barriers to access to health insurance under the ACA.
He disagrees with other policy experts who argue that the mandate is the sine qua non of health care reform.
“I think that’s nonsense. I strongly disagree with that,” he said. He argues that the law’s sliding scale of subsidies will appeal to young people in low paying jobs without health benefits. They’ll get larger subsidies, enter the pool in greater-than-expected numbers, and thus thin the risk pool. This is a key difference, he argues, between the ACA and states that enacted coverage guarantees with no mandate, and thus saw premiums spike. And if that doesn’t contain the issue, Congress can step in many months or years from now.
“The sky is not going to fall if the mandate is invalidated,” he said. “Will there be some escalation of premiums? Maybe. I don’t know. But there are some serious differences between the experience most people see as examples of what happens if you don’t have a mandate and what’s in the Affordable Care Act.”
He’s not alone. In talking points obtained by TPM, the health reform advocacy group Herndon Alliance is pushing a broadly popular message, no matter what the Court decides. “Families need someone on their side—the ACA is on our side making sure children and their parents, even those with a pre-existing condition, have health care coverage.”
It’s unlikely that the two factions will settle on a common theme until after the decision — assuming, of course, it’s a decision they don’t like.
“If the court rules differently on the mandate, then it’s going to be very important for all of us to stick together and understand that the sky has not fallen,” Pollack said. “I would not despair about the Affordable Care Act moving forward.”
Brian Beutler is TPM's senior congressional reporter. Since 2009, he's led coverage of health care reform, Wall Street reform, taxes, the GOP budget, the government shutdown fight, and the debt limit fight. He can be reached at firstname.lastname@example.org.