A Back Door to the Public Option

Any day now the Supreme Court will issue its opinion on the constitutionality of the Accountable Care Act, which even the White House now calls Obamacare.

Most high-court observers think it will strike down the individual mandate in the Act that requires almost everyone to buy health insurance, as violating the Commerce Clause of the Constitution — but will leave the rest of the new healthcare law intact.

But the individual mandate is so essential to spreading the risk and cost of health care over the whole population, including younger and healthier people, that some analysts believe a Court decision that nixes the mandate will effectively spell the end of the Act anyway.

Yet it could have exactly the opposite effect. If the Court strikes down the individual mandate, health insurance company lobbyists and executives will swarm Capitol Hill seeking to have the Act amended to remove the requirement that they insure people with pre-existing medical conditions.They’ll argue that without the mandate they can’t afford to cover pre-existing conditions.

But the requirement to cover pre-existing conditions has proven to be so popular with the public that Congress will be reluctant to scrap it.

This opens the way to a political bargain. Insurers might be let off the hook, for example, only if they support allowing every American, including those with pre-existing conditions, to choose Medicare, or something very much like Medicare. In effect, what was known during the debate over the bill as the “public option.”

So in striking down the least popular part of Obamacare – the individual mandate – the Court will inevitably bring into question one of its most popular parts – coverage of pre-existing conditions. And in so doing, open alternative ways to maintain that coverage – including ideas, like the public option, that were rejected in favor of the mandate.

The fact is, there’s enough the public likes about Obamacare that if the Court strikes down the individual mandate that won’t be the end. It will just be the end of the first round.

This post originally appeared at Robert Reich’s Blog and is posted with permission.

One Response to "A Back Door to the Public Option"

  1. LCR   June 14, 2012 at 8:21 pm

    The main thing we need to do in the healthcare system is deflate the bubble, like we have in the housing market. We should never have allowed it to become such a large part of the US economy. We are subsidizing healthcare for other countries by paying enormous prices to international drug and device companies. The idea that adding in more "payers" in the form of premiums coming from the healthy fixes nothing, and further inflates the bubble. This is what the Fed is doing with the bond market.