Obamacare on Trial: Wendell Potter's Tips for Courtwatchers

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In 2010, Congress passed the Patient Protection and Affordable Health Care Act better known as "Obamacare." This week, the U.S. Supreme Court will rule on the constitutionality of the massive health care reform law. Center for Media and Democracy's (CMD) Wendell Potter, who left his comfortable job as an insurance industry insider to blow the whistle on industry abuses and deadly corporate spin, gives courtwatchers and consumers a list of things to watch out for when the ruling comes down from the nation's highest court.

The health care reform bill was the first major attempt by Congress to lower health care costs and expand coverage in over a decade. In March 2012, the U.S. Supreme Court heard three days of oral arguments on the constitutionality of several provisions of the healthcare law. The key aspects of the law challenged by private interests and 26 states include provisions requiring universal coverage (the individual mandate) and the expansion of Medicaid coverage to 20 million Americans. As reported today by CMD, the National Federation of Independent Business is bankrolling the challenge with the support of Karl Rove's Crossroads GPS. The American Legislative Exchange Council filed an amicus brief in the case on top of its long-term national effort to repeal the law with state resolutions and bills attempting to subvert key requirements of the federal law. Presidential candidates from Michelle Bachman to Mitt Romney have made repeal of the law central to their campaigns.

According to Potter, in the broadest terms, the Supreme Court may take one of four paths: uphold the law, strike down the law, strike down the individual mandate, or strike down the expansion of Medicaid. Even though the bill has no severability clause (meaning that if one portion is found unconstitutional the entire bill must be rejected), many experts feel that the Court will find some way around this to limit or restrict key provisions without striking down the entire bill.

Individual Mandate at the Heart of the Health Care Debate

The individual mandate requires that all Americans purchase health insurance, with subsidies for low-income families. The theory is that by having all Americans, healthy as well as ill, in a large insurance pool, it lowers costs for everyone. The mandate is being challenged by the National Federation for Independent Business as unconstitutional. NFIB purports to represent all businesses, but has a long history taking money from the health insurance industry, and more recently has been bankrolled by partisan political actors like Karl Rove's Crossroads GPS political group. Joining NFIB are 26 states led by Republican attorneys general and governors.

If the Supreme Court strikes down the individual mandate, "the insurance industry will mount an incredibly resourced campaign to get lawmakers to repeal the rest of the bill," says Potter. In particular, Potter fears that key consumer protections will immediately come under attack, "particularly the provision on pre-existing conditions."

In 2014, provisions of the law will be implemented that will prohibit the insurance industry from discriminating against people with pre-existing conditions or charging them more. These provision are literally life and death for millions of Americans who anxiously await the day that these guarantees kick in. Without an individual mandate -- which guarantees insurance companies a steady flow of business -- the industry will argue it can no longer afford to be so generous to Americans struggling with health care problems.

Medicaid Expansion Expected to Cover 20 Million

Equally as important to consumers is the expansion of Medicaid in the law. In 2014, the law will increase income eligibility for Medicaid to expand coverage to an estimated 20 million Americans who currently do not qualify and cannot afford private insurance. Although the federal government will subsidize families and pick up most of the cost of expanded coverage, states will accrue some costs.

According to Potter, if states are allowed to succeed with this line of argument, "it would set a precedent for all federal programs in the health care area." If the Medicaid expansion is struck down "it will really be debilitating," said Potter. "It is a very, very important provision," for millions of Americans hoping to secure health care coverage.

Wisconsin is one of the 26 states arguing that the law unconstitutionally "coerces" states to expand Medicaid. Wisconsin Governor Scott Walker authorized Attorney General J.B. Van Hollen to file a brief challenging the constitutionality of the law. Walker's 2010 budget bill included steep cut-backs in Medicaid offerings for Wisconsin families.

Striking Down the Law Will Put Us Back to Square One

Because the law has no severability clause, if one aspect of the Affordable Health Care Act is ruled unconstitutional, the entire law could be struck down, although many legal observers think this is unlikely.

"I am not of the opinion that if the whole law is struck down that is a good thing," said Potter. Even though the law is imperfect, it would be many years before there is enough will among lawmakers to try again. "We would be back to square one. It would be enormously difficult for advocates of reform to mount a campaign again. We would be losing an enormous amount," said Potter.

A Way Forward

If the individual mandate is stuck down, "we need to make sure advocates of reform in Congress stand strong and don't bend to industry demands to strip pre-existing conditions and other consumer protections" from the remainder of the act, says Potter. Potter also says that health care advocates should immediately take the battle to the states. They may want to follow the lead of Massachusetts, which passed an individual mandate at the state level that has withstood court challenge, or pursue a single-payer model like advocates are doing in the state of Vermont.

Even though Republican Presidential Candidate Mitt Romney is facing criticism from the right for his 2006 decision to press for major health care reform in Massachusetts, the state has the lowest rate of uninsured in the country, points out Potter.

The Supreme Court is anticipated to rule on Obamacare on Thursday. Stay tuned.