Opponents of the Affordable Care Act are hoping that the Supreme Court will soon invalidate the law and put a permanent end to the federal government’s expanded role in health care. But one Capitol Hill watcher says the defeat of the ACA by the high court could lead to something conservatives would like even less – single-payer health care. Well, not anytime soon. But tossing out the law could help nudge things in that direction over time.
Norman J. Ornstein, Ph.D., an author and resident scholar at the American Enterprise Institute, said he could imagine a scenario where if the ACA were defeated, over time, Democrats would move to expand Medicare beyond the 65 and older crowd. Mr. Ornstein, who has a new book coming soon on the growing dysfunction in Washington, offered his two cents while speaking to a group of physicians at the Society of Hospital Medicine’s annual meeting in San Diego this week.
Protesters outside the Supreme Court in March. Photo by FRANCES CORREA/ IMNG Medical Media.
Another way that single-payer health care could become a reality is at the state level. Individual states might experiment with single payer-type programs along the lines of the Green Mountain Care program in Vermont, Mr. Ornstein said. Lawmakers in that state have enacted legislation allowing them to phase in a single-payer health care system over the next several years. But they have yet to hammer out details on how to pay for the program and it’s unclear how long it will take to move from the current framework of public and private insurance to a single-payer system.
Yep, that’s a shameless bid to appear higher on Google search results, but it’s also a pretty good metaphor for what’s happening in Washington in advance of the Supreme Court oral arguments on the Affordable Care Act–due to be heard March 26, 27 and 28. Although speculation about how the Justices may rule has been going on for months, the gambling has reached a fever pitch.
ALICIA AULT/IMNG Medical Media
Next week is to Court Watchers as the Final Four is to legions of NCAA Division 1 basketball fans: The brackets have been completed; it’s just a question now of who will come out on top.
Conventional wisdom has the Supreme Court splitting along perceived “party lines” in a 5-4 vote either in favor of upholding the law, or against it.
But with the Justices taking on three separate, major issues within the law, Washington wonks, soothsayers, and legal eagles have gone into a frenzy of handicapping. Not a day goes by without a backgrounder or briefing that professes to have the best read on the tea leaves.
The Court, as is its wont, has shied from the limelight. Until today, it had not even determined how it would accommodate the legions of journalists (myself included) who will descend upon the courtroom to cover the historic arguments. Details are still being worked out, but one thing was not going to change: the Court has steadfastly refused to allow audio or video broadcasts of the proceedings. (Which means there cannot be any contests requiring a shot every time the challengers’ attorney, Paul Clement, utters “individual mandate.”) The Court is even banning–heaven forbid–cellphones. That means no pithy Tweets on Justice Clarence Thomas’ enduring silence.
This morning–at a briefing sponsored by Politico–came new predictions from an estimable panel of D.C. insiders: former U.S. Solicitor General Walter Dellinger, Neal Katyal, Al Gore’s co-counsel at the Court in Bush v. Gore, Tom Goldstein, a former Court clerk and publisher of Scotusblog, Kevin Walsh, a former clerk to Justice Antonin Scalia, and Nina Totenberg, the veteran Court correspondent for NPR.
Dellinger, Goldstein and Katyal. ALICIA AULT/IMNG Medical Media
The Justices to watch, said Ms. Totenberg: Anthony Kennedy and Chief Justice John Roberts. They are both widely considered swing votes. Some have also have put Justice Scalia in that camp, “which I personally think is a crock,” Ms. Totenberg said. Mr. Katyal said that Samuel Alito could also be “in play.”
Will politics come into play? Justices “have a grasp of politics that defies imagination in terms of its inaccuracy,” said Ms. Totenberg, who, like the others discounted the idea that the Justices would be influenced–or motivated–to vote in one direction or another based on the prevailing political winds.
The panel was unanimous–except for Ms. Totenberg, who recused herself from making a wager–in its opinion that the Court would uphold the law, most likely in its entirety.
Mr. Goldstein said he could not effectively imagine a victory by the law’s challengers. If the Justices threw out the Act, it “would lead to probably an array of attacks on different parts of the federal regulatory state because for the first time you would have had five justices that take very seriously limits on congressional power,” he said.
By the end of next week, the Court will likely hold one closed-door conference and a series of votes, said Mr. Walsh.
He and the other panelists went out on a limb, saying that the 5-4 prediction may no longer hold. Mr. Goldstein said it could even be a 6-3 or 7-2 ruling upholding the law.
So who will write the opinion, expected to be issued in June? Mr. Dellinger predicted that it would be Justice Roberts. Mr. Goldstein, however, said this might be the rare case where the Court issues a per curiam opinion–that is, written in the name of the Court, rather than by any of the Justices. Interestingly, Bush v. Gore was a per curiam decision.
As the Supreme Court prepares to take on challenges to the Affordable Care Act, new data suggests that Americans remain divided on the constitutionality of the law’s requirement that all Americans purchase health insurance. Little more than half of Americans (54%) think the individual mandate should be ruled unconstitutional and that the Supreme Court will likely agree (55%), according to a recent poll by the Kaiser Family Foundation. The poll was based on telephone interviews with 1,206 adults in the United States from. Jan 12-17.
Courtesy Kaiser Family Foundation
The poll also found that more than half (59%) of Americans think the Supreme Court Justices will base their ruling on their own opinions. That sentiment is being echoed by the conservative interest group Freedom Watch, which recently filed its second petition to request Justice Elena Kagan to recuse herself. Supporters of the petition take issue with Justice Kagan’s former position as Solicitor General and close adviser to President Obama while the law was being written.
If the mandate were ruled unconstitutional, it’s not clear if the rest of the law would remain solvent. According to the poll, 55% of American thought remaining provisions of the law would survive but 30% said it would mean the end of the law entirely.
Courtesy Kaiser Family Foundation
Further, the Kaiser poll shows that Americans are split on their own opinions of the ACA. According to the poll, 44% are against the law, 37% support the law, and 19% are unsure.
However, a majority (67%) oppose the mandate because it forced American to do something they don’t want to do (30%) or because health insurance is unaffordable (25%). An additional 22% just don’t like the idea of paying a fine for not having insurance.
Those who do support the mandate (30%) said it guarantees that everyone needs health coverage (32%) and that the mandate can guarantee that (17%). Some also said the mandate could control costs (15%).
The Obama administration recently filed a petition asking the Supreme Court to review a lower court decision on the constitutionality of the Affordable Care Act. The 11th Circuit Court of Appeals in Atlanta had struck down the law’s requirement that individuals have insurance, because it violated the Commerce Clause of the Constitution. The appeals court decision would allow the rest of the Affordable Care Act to go forward.
Supporters of the Affordable Care Act aren’t the only ones looking to get the Supreme Court involved. A coalition of 26 states that is challenging the law has also petitioned the high court to review the decision of the 11th Circuit Court of Appeals. Those states want the Supreme Court to throw the health law completely.
The Supreme Court justices haven’t officially decided whether they will review the Affordable Care Act. But if they do take on the case, their decision is likely to come in the middle of the 2012 presidential campaign.
Hear more about the legal wrangling in the Oct. 3 edition of Policy & Practice podcast. This week’s podcast also includes new figures on rising health insurance premiums and the latest on a proposal from the Department of Health and Human Services to offer bonus payments to primary care physicians who spend more time with patients and provide intensive disease management.
Take a listen:
Join us next week to hear how physicians are trying to influence the deliberations of the Joint Committee on Deficit Reduction.
The names are in and the lobbying has begun. Physicians — and others — are weighing in with their priorities for the Joint Select Committee on Deficit Reduction — better known as the Super Committee. The group is charged with cutting $1.5 trillion of federal spending by Thanksgiving.
At the top of most doctors’ list: A permanent fix to the Sustainable Growth Rate (SGR) formula, which could lead to a 30% pay cut on Jan. 1. But physicians from several specialties have other concerns they want addressed as well.
Meanwhile, a federal appeals court in Atlanta ruled that the Affordable Care Act’s (ACA) individual mandate is unconstitutional, pushing the law one step close to its much-predicted airing in front of the Supreme Court.
Regardless of legal wranglings, the feds are busy pushing ACA programs along, with announcements of more than $200 million worth of programs last week.
LISTEN: For details, check out this week’s Policy & Practice Podcast. Let us know what you think.
The Supreme Court heard arguments Tuesday in support of the 2007 Vermont statute limiting the release of the information detailing which drugs doctors prescribe. This information is maintained by pharmacies, which sell it to data-mining agencies, that in turn sell it to drug companies, for marketing purposes. Patient information is excluded from the data, doctor’s information is not.
Under the Vermont law, this information can be released only with the consent of the doctor. However, once data collection firms like IMS Health and interested parties like Pharmaceutical Research Manufacturers of America, challenged the statute, the issue became a question of free speech.
In the case of Sorrell v. IMS Health Inc., data-mining firms claim they have First Amendment rights to buy and sell the information for their marketing use.
However, the state’s attorney’s office likened the release of the confidential information to disclosing a doctor’s tax returns, patient files, or a competitor’s business information, arguing that First Amendment rights in the case apply to protecting doctor’s information. But since the information is given away to parties including insurance companies, journalists, and law enforcement, the court wasn’t too convinced.
” … just don’t tell me that the purpose is to protect their privacy,” said Justice Antonin Scalia. “[A doctor's] privacy isn’t protected by saying you can’t sell it but you can give it away.”
Justice John Roberts said Vermont is trying to reduce health care costs by “censoring” information doctors hear about brand-name drugs, with the intent that they will prescribe more generics, a measure Justice Scalia added was a restriction on free speech.
Vermont Assistant Attorney General Bridget Asay responded that “the purpose of the statute is to let doctors decide whether sales representatives will have access to this inside information” on the prescribing habits of physicians.
In an age in which personal data can mined through social networks and search engines, this case could set the precedent concerning how much personal information can be used for marketing. A decision is expected by June.
Image via Flickr steakpinball by Creative Commons License.
Earlier today a judge in Virginia ruled that the federal government doesn’t have the authority to require individuals to purchase health insurance under the recently passed Affordable Care Act. In his decision, Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia said that Congress had exceeded its authority under the Constitution. But he stopped short of throwing out the law entirely. So does this mean that the individual mandate is out for good? Not necessarily. Today’s ruling simply moves health reform one step closer to a legal showdown in the Supreme Court.
For more on the ruling, check out this week’s Policy & Practice podcast. This edition of the podcast also includes the latest on Medicare physician payments, Accountable Care Organizations, and the potential for greater innovation in health care delivery under the Affordable Care Act. And stay tuned next week to learn how Republican control of the House could affect health policy.
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