Man walks into a column, no.45: Obamacare

Yesterday, the 2012 US presidential election, already resting precariously on the sharpest of knife edges, became even more unpredictable, when the Supreme Court decided to review President Obama’s 2010 healthcare law. The ruling will come next March, smack bang in the middle of the election campaign.

But what’s arguably most interesting about this momentous decision is that howevermuch the ruling will change the election, it might have very little impact on healthcare itself, whichever way the judges come down. Just as in England, where a political vacuum is leaving local health services to make up their own minds, so in the US, people across the country are just getting on with implementing legislation that, whilst passed, could quite possibly be ruled unconstitutional.

In agreeing to review the Patient Protection and Affordable Care Act (so typically American: even its title is a political statement) the Supreme Court is responding to the only appeals court to have ruled that the Act is unconstitutional: most have said it isn’t. Even courts featuring conservative jurists have refused to strike it down: the Court of Appeals for the District of Columbia being the latest example.

This fact – along with the substantive reasons behind the mostly favourable rulings – may give Team Obama hope. The author of the District of Columbia decision, Reagan-appointed Justice Laurence Silberman, said the individual mandate, which requires Americans to buy health insurance or face a penalty (needless to say the most controversial bit) was necessary ‘because the uninsured inflict a disproportionate harm on the rest of the market as a result of their later consumption of health care services.’

For Republicans, the Obamacare legislation – in particular its perceived infringement on individual liberty – has acted as an incredibly strong galvanising force. And GOP attacks on the reforms have certainly swayed public mood: the bill has a bad image. Most people like individual elements of the reforms, up to and including the individual mandate, but don’t like the act overall (see the Washington Post for an overview of the polling data).

So which way will the Supreme Court go? Andrew Cohen, legal analyst at CBS News, has a fun guide to the betting odds on the possible decisions of individual judges and the overall outcome, which smuggles in some useful stuff about precedent and ways for the Court to fudge the issue if it so chooses. It’s probably too early to say what impact the decision will have on the election, not least because, for example, it’s plausible that a strike-down ruling could energise the Democratic base, just as a vote in favour could.

Here’s the really fascinating bit, though: all of the above may come too late, because healthcare reform along the lines of the act is already happening. The New York Times has this overview of how, at local level, health providers are already preparing for reform, with many state legislatures implementing their own versions. Hospitals are already hiring clinicians on mass to cope with predicted influx of new patients. State regulators are keeping a closer watch on insurance premiums, saving citizens money in the process.

If the Supreme Court does decide to rule the healthcare act unconstitutional, there could be real problems caused by the ending of federal funding, but as the NYT piece shows, funding problems are acute already. So the Court’s decision is both momentous and a sideshow: the potential for a really significant impact on the election, and very little impact on what happens on the ground.


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