Obama, Justice Roberts and How the Crucial Health Care Victory Will Affect Millions

Mark Bizzell


Shakespeare's plays all begin with a conflict that is well underway by the time the curtain goes up.  A divided court, controversial law, and a presidential election five months away took center stage in this summertime drama.   In what seems to be the climax for President’s Obama signature legislation, we are actually in the midst of the greatest health care transition this country has ever seen. 


On the last day of the Supreme Court’s 2011-2012 session, the decision came down on the constitutionality of the Affordable Care Act (ACA), or “ObamaCare” if you’re a Republican.  Astonishingly, the leader of the free world found out as many Americans did, watching television on a warm June morning.  The president was outside the Oval Office where he could hear and see a bank of television monitors.  FOX News and CNN reported that the centerpiece of the law, the individual mandate requiring all Americans to carry health insurance, had been struck down.  President Obama didn’t react. 


About a minute later, it was revealed that the ACA had indeed survived the challenge, with the confusion coming from reading the opinion’s first paragraphs.  The court rejected the argument that the mandate was valid due to the interstate commerce clause in the Constitution, but found it constitutional on the government’s taxing authority. 



Stranger Than Fiction

The decision sent shockwaves throughout the nation.  Conservative Chief Justice Roberts authored the 5–4 ruling joining the liberal judges.  Moderate Justice Kennedy’s dissenting vote swung to the right with the conservative block.  The law, and possibly the president’s fortunes, had been saved by a chief justice whose confirmation Obama had voted against in 2008 as senator.  The question on everyone’s mind was why?


John Roberts’s court had delivered 5-4 opinions over its first years along ideological lines, bringing accusations of a partisan court.  Maybe he wanted to re-establish the legitimacy of his court by finding the law constitutional.  Or perhaps he saw the unraveling of years of precedent as a threat to the court’s reputation.  We probably will never know for sure.  Reports of Roberts changing his vote after initially siding with the conservative justices are beginning to surface.


Although the ACA is now firmly the law of the land, a constitutional law is not necessarily a permanent law.  Presumed Republican presidential nominee Mitt Romney and his party’s members of Congress vow to repeal the law.  Rush Limbaugh calls it the biggest tax increase in the history of the world.  Fox News’s Megyn Kelly ominously said on air that a sleeping giant had been awoken, ending with, “It’s on!”


Rhetoric aside, what does the law mean to Americans?  If you have health insurance already through your employer, maybe not much.  For 30 million uninsured Americans, it might mean anything from affordable coverage to saving your life.



Health Insurance Ensured

Carson Hall hasn’t had health coverage in more than 20 years, despite never not working.  Being self-employed, an individual policy always carried with it prohibitively high premiums and deductibles.  He has gambled that he would never need coverage.


He lost that bet.  Last year he fell on the sidewalk and hit his head less than a mile from Cedar Sinai in Los Angeles.  An ambulance ride to the ER, a CAT scan and a prescription for Vicodin and he was home.  The bill for $15,000 followed him there a month later. 


“I would have walked to the ER if I knew that the ambulance alone was going to cost almost $2,000 alone,” Carson said.  “But I ended up needing stitches.  I can’t believe that something so minor cost so much,” he added.


The ACA will provide Carson the opportunity to purchase affordable health care beginning in 2014, most likely from a private insurer since a public option was taken out of the act early on.  The plans available will be through an exchange or consortium of insurers set up by the states.  By pooling people like Carson, insurance companies will be able to charge lower premium just like they do for employers.


Most developed nations have some form of universal coverage.  Great Britain and France have what is probably closest to government-run health care.  Japan and Germany have something closer to what we have now, near universal coverage through private and public insurers.  What makes our system so confusing is that each of the 50 states regulates health insurance along with the federal government.


A federal law called ERISA (Employee Retirement Income Security Act) passed in 1974 was supposed to allow self-insured health plans (in which the employer assumes the risks) to adhere to federal laws rather than state statutes.  But it has had the effect of squashing lawsuits against health plans in state courts, where they stand a better chance of prevailing.  Employers that don’t self-insure are regulated by the state, meaning that policies cannot be sold across state lines.


Currently, since we have an employer-based system each time you change jobs you most likely will change carriers.  If you’re laid off, it’s expensive to keep overage through COBRA (Consolidated Omnibus Budget Reconciliation Act, part of ERISA) since you have to pay all the premiums yourself rather than your employer picking up a portion.  Unemployed for more than 18 months?  You probably will lose your coverage.


The ACA does ensure a host of protections for those who do purchase health insurance, whatever the type.  Among them:

·        A ban on insurance companies refusing coverage to those with pre-existing conditions

·        No monetary caps on coverage

·        Children can be on parent’s plan until age 26

·        The poor placed in the state/federally-funded Medicaid program

·        Exchanges set up by the state pooling individuals without employer coverage and matching them to private insurers



Most of these provisions would have unraveled had the individual mandate been declared unconstitutional.  Some people would have waited until they became sick to enroll in a health plan.  The part of the ACA that wasn’t looked upon favorably by the court was the requirement that states expand their Medicaid program for the poor or risk losing federal dollars.  It was ruled the federal government couldn’t make such a threat, although some states are voluntarily expanding their program.  Others, like Florida, refuse to even though it has one of the highest percentages of uninsured in the nation


Boon for Health Insurers?

You might think that health insurance companies would be salivating at the thought of getting a slice of the 30 million Americans that are presently uninsured.  Think again.  For years they have been cherry-picking a healthy pool of people who are working for large employers.  Medicare takes on the elderly, who are the sickest generally.  And the destitute either end up in the Medicaid program or uninsured.  The working poor?  They probably don’t have insurance: People who live paycheck-to-paycheck and own Mom and Pop shops like auto repair, salons or diners usually can’t afford the premiums associated with individual policies.  So they have to just chance it.  Until now.


United Healthcare, the nation’s largest insurer, said before the decision that they would keep most of the law’s provisions even if the individual mandate were struck down.   Shortly after the ruling, Cigna issued a mostly positive statement giving their customers a toll-free number and online resources to answer their questions.  Health insurers have spent millions preparing for and enacting the first parts of the law, and they don’t want to undo that.  Exactly what Obama had planned.  Perhaps they are now realizing that maybe they can figure out a way to make a profit on a larger pool.


As for employers, those with more than 50 employees must provide coverage. Small businesses do not have to provide coverage, although they will receive tax credits as an incentive to do so.


A Conservative Idea

What’s surprising is that the individual mandate was originally a conservative position.  The idea was that you shouldn’t skip insurance coverage and just show up at the ER expecting a freebie.  Never mind the cost of actually getting coverage.  Backed by the likes of former senator Robert Dole (R) Kansas and the conservative Heritage Foundation in the early 1990s among others, the mandate was viewed skeptically at that time by Democrats who wanted all employers to be required to provide insurance.  Years later Obama even spoke publicly against it when campaigning for president in 2008. 


Embraced by Obama once he became president, the Republicans positioned the mandate as the federal government overreaching.  Whipping the Tea Party into a frenzy, the right labeled it as “ObamaCare.”  The problem is that Mitt Romney did the same thing for Massachusetts as governor.  “RomneyCare” will undoubtedly haunt him into the debates.


Speaker of the House John Boehner said on the CBS News June 29, 2012 that even though some of law’s provisions are good, like the ban on lifetime caps and preexisting conditions, he and his colleagues will move to repeal the act entirely.  “ObamaCare needs to be ripped out by its roots,” he said.


For all the talk of socialized medicine and government-run health care, the ACA is anything but.  Private insurers, private doctors, private hospitals, and private drug companies make up the bulk of our system.  Medicare may be a government insurance plan for the elderly, but we have an employer-based insurance system and retirees no longer work.  The doctors and hospitals that serve Medicare recipients are by and large private also.


The only fully government-run health care entity in the U.S. is the Veterans Administration, where hospital and doctors work for the government.  According to the Congressional Budget Office, the VA provides health care at little or no charge to more than 5 million veterans annually.   


It’s taken 100 years for the country to enact a heath care law that will at least move us toward universal coverage.  Teddy Roosevelt tried in 1912 to create a national health care system and failed.  Even with the ACA, the U.S. health care system is far from perfect.  But it is movement in the right direction.


Health care isn’t a product like a car or toaster you can do without.  Some day, every one will fall ill.  It’s just a fact of life.  Let’s hope that health care for all will one day also be a fact of life.


Author Bio:

Mark Bizzell is a contributing writer at Highbrow Magazine.


Photos: NewsOne; Whitehouse.gov; CSPAN.

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One of the best explanations and discussion of the Affordable Health Care Act that I have read so far. And I am not just saying that because the author is a distant cousin.  There has been so much misinformation put out about this legislation by those who have an ax to grind that it is refreshing to see a non-partisan presentation of the facts.


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