Intended for healthcare professionals

Observations Yankee Doodling

US Supreme Court considers Obama’s health reform law

BMJ 2011; 343 doi: (Published 23 November 2011) Cite this as: BMJ 2011;343:d7579
  1. Douglas Kamerow, chief scientist, RTI International, and associate editor, BMJ
  1. dkamerow{at}

Will it matter what the justices decide?

The big news here last week was that the Supreme Court has agreed to consider the constitutionality of the healthcare reform law. The nine justices (there have been calls on both sides for individual justices to recuse themselves because of conflicts of interest, but apparently none will) are scheduled to hear the case in March 2012.1 They have set aside an unprecedented five and a half hours for each oral argument, indicating the importance of the issue. This would put them on a course to announce their decision in late June, right in the middle of the US presidential election campaign.

The key question is whether Congress has the authority to require all US citizens to either buy health insurance or pay a fine. No one is surprised that the justices decided to take on this so called “individual mandate” provision (about which more below), but many did not expect them to invite arguments on three other issues as well. These are whether Congress can require states to expand their Medicaid programmes (which are co-funded by the states and the federal government) to cover more poor and disabled people; whether the law’s other provisions can be enforced if the individual mandate is declared unconstitutional; and whether it might be too early to consider these issues at all, as no one will actually be paying a fine for not signing up until 2015.

There is no question that the Affordable Care Act, which its detractors call “Obamacare,” is increasingly unpopular. An October Gallup poll reported that more Americans want it repealed than want it retained: 47% to 42%.2 A November poll by the Kaiser Family Foundation found that half of Americans have an unfavourable view of the law, while only 34% view it favourably.3 This is the lowest rating the law has had since it was passed.

Its increasing disfavour is despite the fact that several provisions of the massive law that have already taken effect have been very popular. Young people can now get affordable insurance on their parents’ policies up to age 26. Many patients with pre-existing conditions can now change jobs (and thus change health insurance policies) without being excluded from coverage. All preventive services that are highly rated by the US Preventive Services Task Force are now available without cost, copayment, or deductible charge in the Medicare programme for elderly and disabled people. These are all highly valued improvements in insurance coverage that have been mandated by the law.

It is hard to predict what the Supreme Court will rule next June. Twenty six (Republican) state attorneys general argue that the individual mandate is a blatant intrusion on individual liberties that requires people to purchase health insurance from a private party. Supporters argue just as strongly that the fines for not participating are just a tax, like any other tax the government imposes for the public good. Unfortunately for President Obama, he argued in his election campaign against an individual mandate, only coming around to supporting it when he was president. Constitutional scholars have argued since the law was passed whether the “commerce” clause of the US Constitution supports this type of mandate4 and, if not, whether there are other parts of the constitution, such as the so called “necessary and proper” clause,5 that do. Lots of ink will be spilled over this one.

I can tell you, though, that it really won’t matter that much whether the Supreme Court rules for or against the law, either as a matter of politics or even policy.

It is easy to see why politics won’t change, regardless of what the Supreme Court says in March. The two sides are already perfecting their arguments. If the law is upheld, Republicans will have a rallying cry perfectly timed to elect their Obamacare repeal oriented candidates in November 2012. Similarly, if the court overturns the law, President Obama has the socioeconomic issue he is searching for in his quest for re-election. Trot out the children, veterans, and needy who (briefly) had insurance but now don’t. It would make excellent television.

As for the effect of the ruling on actual policies and outcomes, many provisions of the law, listed above, have already been implemented. It seems very unlikely that they would be reversed if (parts of) the law were declared unconstitutional. Are we going to take insurance away from 25 year olds or from people with diabetes who change jobs? I think not.

And, as three New York Times writers pointed out in a recent article,6 economic pressures are forcing dramatic changes in the healthcare system that will continue even if the law is invalidated. Hospitals are merging and buying up primary care practices. Computerised connections among practices, laboratories, pharmacies, and hospitals are being built. Rules are being simplified. Healthcare is being made safer. All this and more will continue, no matter what happens in June.

I am not sure whether to be cheered or saddened by all this. I guess the news for a supporter of the reform law is good, although I can’t help but be chastened by the huge number of Americans who want it to go away. The question for them is, as it always has been, what are you going to replace it with?


Cite this as: BMJ 2011;343:d7579



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