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Health Law Deja Vu: Bush v. Gore And Politics On The High Court

This article is more than 7 years old.
Lady Justice (Scott*/Flickr)
Lady Justice (Scott*/Flickr)

In the fall of 2000, my reporter buddies and I would gather every evening at various bars or people's apartments, fixated and anguished by the political theatre of Bush v. Gore before the U.S. Supreme Court. Yesterday's partisan grilling by the justices on the health law's individual mandate slammed me right back to that time. Once again, politics seemed to dominate the high court in so many ways.

As I followed all the analysis yesterday — CNN's Jeffrey Toobin says the mandate is dead, the government's case is deemed a "train wreck," the anti-health-law faction's broccoli-obsession, etc. — I wondered if the justices truly came at the case with open minds or if political orientation is the main driver here. We may never know. But if you want comprehensive coverage of the drama that continues today with arguments on Medicaid and "severability," here's Kaiser Health News' Health Law March Madness, which examines pretty much every angle of the case and its broad implications.

Here's one piece looking at ways to salvage the health law should the individual mandate be found unconstitutional:

There are ways that Obama—if he’s re-elected — might be able to salvage the law even if the court strikes down the individual mandate but leaves the rest intact, health policy experts say.

These fixes would create financial incentives for people to not delay enrolling in insurance.

One such approach would be similar to what happens in Medicare’s Part B program, where people who wait too long to sign up for physician coverage must pay higher premiums.

Another tactic would exempt insurers from having to cover pre-existing conditions for several years for consumers who delayed obtaining coverage until illness struck. "It's a simple, elegant, policy solution: boom, bang, done," said Robert Laszewski, a consultant and former insurance executive. "That's enough protection for the health insurance pool."

But those changes would need congressional support, which is unlikely unless Democrats gain control of the House and a filabuster-proof majority in the Senate. At a recent forum on the court and the law, Chris Jennings, a Democratic health consultant, said that the law "may be virtually impossible" to fix because of the political environment, which Sheila Burke, a former top adviser to Senate Republicans, called "poisoned."

Absent federal legislation, experts say the Obama administration would need to forge a close alliance with insurance companies if it wants to prevent the overhaul from falling apart. Insurers have reason to cooperate, too, even though Democrats vilified them during the 2009 debate over the law, said Len Nichols, director of the Center of Health Policy Research and Ethics at George Mason University in Fairfax, Va. That’s because the court might leave intact parts of the law requiring insurers to cover all applicants and not charge those with medical problems much higher rates – a financial nightmare for insurers. The administration has asked the court to strike those provisions if it invalidates the mandate.

This program aired on March 28, 2012. The audio for this program is not available.

Rachel Zimmerman Twitter Health Reporter
Rachel Zimmerman previously reported on health and the intersection of health and business for Bostonomix.

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