The arguments before the U.S. Supreme Court on Obamacare are now over, and all bets are off. Observers who tried to assess the mood of the Justices seemed to be more perplexed at the end of the hearings. One thing is certain: it will be a close call.
The Court is essentially divided along ideological lines with conservatives (including Chief Justice John Roberts, Justices Antonin Scalia, Clarence Thomas, and Samuel Alito) fairly consistent with the right of center viewpoint.
Progressives include Justices Ruth Ginsburg, Stephen Breyer, Sonja Sotomayor, and Elena Kagan who also seem in tune with their ideological bias. Justice Arthur Kennedy, a George H.W. Bush appointee and a conservative, has occasionally crossed the ideological divide.
At issue: is Obamacare constitutional?
Much is made about the political implications of the eventual ruling, expected in early summer of this year. Little, however, is discussed about the possibility that Obamacare be ruled unconstitutional and what that would mean.
Let us recall that Obamacare is the most far-reaching healthcare reform since Medicare and Medicaid, passed during the 60’s under the Lyndon B. Johnson Administration. The U.S. system is a hybrid model with a mix of public and private monies. The U.S. spends more public money per capita than any nation in the world.
Yet, many of its citizens are covered by private insurance companies. Currently, it is estimated that close to 1/6 of the U.S. population are uninsured (50 million).
Obamacare tried to address that problem by bringing forward an idea from conservative think tanks, and once supported by Mitt Romney and Newt Gingrich – the healthcare mandate.
The mandate would require by 2014-15 that the uninsured buy insurance or suffer a penalty. Using the commerce clause in the U.S. constitution, the Obama Administration believed that their approach was constitutional since all citizens are at one point consumers of healthcare.
It is important to recall that even the uninsured get full services should they go to the emergency wards. But someone has to pay at the end of the day.
Currently, healthcare represents about 18% of GDP in the U.S. compared to approximately 10% in other OECD countries. Costs are escalating and the U.S. remains the one country in the Western World where getting sick can bankrupt you.
Like it or not, Obamacare was meant to address the problem. Obama chose the mandate approach as opposed to the single payer approach that we in Canada have since the late 1960’s and early 1970’s. He was encouraged back then in 2009 by former Governor Mitt Romney to adopt this approach which had become the norm in Massachusetts under the said Governor’s Administration.
Obamacare has since become a lightening rod for the Republican Party and the conservative establishment. What is disconcerting and confusing to many is that no one has an alternative in the event Obamacare is struck down.
Obamacare currently eliminates pre-existing conditions as a factor for private insurance companies to refuse coverage. It also allows young people under 26 years old to stay on their parents’ plan.
In addition, it provides seniors as they begin retirement with financial help with their medication costs.
If the law is judged unconstitutional, do all provisions fall, or just the infamous mandate provision? The fact is the mandate provision provides private insurance companies with the risk pool to provide for the more popular aspects of the law and possibly bring costs down.
Whatever happens and whatever the merits, it is sad that opponents to Obamacare have yet to propose an alternative should the Court strike it down.
Maybe the only alternative left is the single payer system which we know conservatives and the GOP abhor and consider socialism.