BOSTON — The fate of President Obama’s health care overhaul now lies in the hands of the U.S. Supreme Court and observers aren’t expecting a decision until this summer.
The unprecedented combination of health care policy and legal theory has kept many Boston-area residents glued to their computers, radios, televisions and phones for updates.
“I’ve been mildly obsessed with the hearings,” said Blue Cross Blue Shield of Massachusetts CEO Andrew Dreyfus. “I’ve been listening to them and reading the transcripts at night. It’s just such an incredible moment of both constitutional history and political theater.”
Blue Cross filed an amicus brief on the central issue before the high court: whether the federal government can require Americans to buy health insurance. Blue Cross argues the individual mandate is constitutional because patient spending on health care crosses state lines.
Many Massachusetts residents were surprised by how the individual mandate was described this week in and outside the Supreme Court.
“One thing we’re hearing a lot in Washington, particularly from people who are opposed to the health care law and would like to see it overturned, is how draconian the mandate is and what an extreme example of government overreach it is, and it’s the death of freedom and all of that,” said David Kravitz, co-founder of the left-leaning blog Blue Mass Group.
Kravitz says he’s struck, listening to these claims, by how little opposition he’s seen to the individual mandate in Massachusetts, the only state that currently requires residents to buy health insurance.
“And I say that as someone, honestly, who was quite skeptical of whether an individual mandate was a good idea and was necessary to get the law to go forward,” Kravitz added.
In Massachusetts there have not been any major court challenges or attempts to overturn the health insurance requirement.
“We were able, in Massachusetts, to really create a culture of coverage, an expectation that this is part of our value system,” Dreyfus said. “Unfortunately that’s not yet been embraced nationally.”
At the Supreme Court on Tuesday, Justice Anthony Kennedy suggested that forcing Americans to buy health insurance might be an unprecedented federal move.
“When you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way,” Kennedy said. “Do you not have a heavy burden of justification to show authorization under the Constitution?”
Harvard Law School professor Charles Fried says that’s nonsense. Fried organized a brief filed on behalf of 104 health law professors nationwide.
“There is a fundamental change, but it was worked about 70 years ago, when the government said everybody has to pay for unemployment insurance and disability insurance and when it said that everybody has to pay insurance for Medicare,” Fried said. “That was a fundamental change, but that was a long time ago.”
The justices raised many questions Tuesday about whether the individual mandate is constitutional.
“It was a very thorough discussion both from the folks on the right and the left on the court, looking at a number of different issues we have raised,” said Josh Archambault, with the Pioneer Institute in Boston. The institute signed onto a brief arguing that the federal government’s economic rationale for the individual mandate doesn’t make sense.
“I was very surprised by how skeptical the justices have been and that is encouraging to us,” Archambault said.
The Massachusetts state mandate would stand if the federal law is overturned, but that’s little concession for the broad health care community in Massachusetts that celebrated two years ago when the state law became a model for the federal Affordable Care Act.
“The thing that’s keeping me up at night is that if the individual mandate is overturned, it will bring down a lot of the Affordable Care Act with it,” said Harvard School of Public Health economist Meredith Rosenthal. She helped draft one of the 130 briefs Supreme Court justices have to review.
Rosenthal says she’s crushed by the looming possibility that if the Supreme Court decides the individual mandate is unconstitutional, then plans to expand coverage for low-income residents across the country will come to an abrupt halt. Hundreds of other large and small changes, as well as plans to test new ways to pay for and deliver care, would also end.
“And then, as you know, Congress is not really in a place to resurrect new policies,” Rosenthal said. “It’s hard to imagine that we could pick up the pieces. We will not see anything new for awhile.”
Not at the federal level perhaps, but Archambault is one of many who argue that health care reform should be a state-by-state experiment.
“I think the lessons that you pull from Massachusetts only apply to a number of states that are more similar to us,” Archambault said. “It’s very worrisome when we think that individuals and employers will act in the same manner in a New England state versus a southern or even western state.”
For Archambault, Rosenthal and many other health care devotees in Massachusetts, it will be long wait for a Supreme Court decision that is not expected until June.