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Supreme Court Prepares to Kill
Health Care Law

April 11, 2012 by Izzy Moskovitz

Well, folks, it looks like the writing is on the wall. Despite all the assurances over the last few years that this thing was watertight, it looks like the Affordable Care Act, also derisively known as "Obamacare" by its vociferous opponents, is facing a very uncertain future in the Supreme Court.

The Supremes have checked it out, have made a few oral statements, and from the look of things, this is how the score appears to stand:

Four conservative Republican-appointed Supremes:


Four progressive Democrat-appointed Supremes:


One Anthony Kennedy appointed by Republican Ronald Reagan:

Hmm, it appears that I'm the swing vote again here. Seems like it's all down to me once again. Heh, heh -- one single man to decide the fate of the Affordable Care Act for the entire US of A. For the moment, I guess I'm more powerful than the President himself. Well, let's see here. It doesn't look all that good to me, actually. I might just stick a fork in this one. We'll see, we'll see.

Allow me to make the usual tired clarifications for any readers out there who want to quibble with me on the details. The big thing up for debate here is whether or not the individual mandate will be allowed to stand. Arguably, if the Supreme Court strikes down the individual mandate provision, the entire act will fall apart. That's because the individual mandate was absolutely required in order to make the act palatable to the private insurance companies in the first place. Take away the individual mandate, so the argument goes, and the whole plan is ruined. And although I do not particularly sympathize with fat cat medical insurers, I am compelled to acknowledge the logic here. Like any business, they are looking after their bottom line, something that the Supreme Court will most definitely not overlook, since the hypothetical role of private health insurers constitutes an integral part of the Affordable Care Act.

To figure out how we got into this mess in the first place, we've got to go way back to 2008 when our current president was on the campaign trail running for the White House. Back in those days he was nice and wet behind the ears. He positively gleamed and had that bright, squeaky-clean optimism and brilliant moral courage that so many of us found so appealing. He energetically strode up to the podium and reminded us that our current health care system was a disaster. Reaffirming the progressive dream of the last several decades, a dream that always seemed to get mercilessly snuffed out in Congress over and over, he proclaimed that he was also in favor of universal health care, ideally through a single-payer system, similar to what has been implemented in first-world nations like the United Kingdom and Canada for quite some time.

Of course, opponents pounced on those remarks, huffing and puffing that, according to them, the United Kingdom and Canada have "failed" health care systems, and we sure as heck don't want anything like that in America.

As if the American health care system was so much better.

Oh yeah, retorted the conservatives, well, when the English and Canadians get really sick, they come to America for the best care, so that just goes to show you.

Certainly, I can't argue with that, since in the United States, the best care goes to those with the best insurance coverage and the most disposable income. If you're poor and uninsured, an all too common occurrence in this country, you'll probably wish you were in the United Kingdom or Canada when you have to be hospitalized for several days. When that happens to you here, your credit rating is trashed forever and you have to declare bankruptcy. But of course, as the conservatives tend to argue, if you're poor, it's your own damned fault, since you should pull yourself up by your bootstraps with your good old independent American spirit that made this a great nation of stallion-riding cowboys who shot up a bunch of evil Indians who wanted to hog all the land for themselves, as John Wayne himself once remarked. Good old John Wayne.

But let's return to our memories of Obama back in 2008. So, he shared his inspiring and lofty vision of single-payer universal health care with us, and we wondered -- can it really happen? Will Democrats end up with a large enough majority in Congress to make the great dream a reality?

At first, it seemed like there might be a chance, but large numbers of so-called blue-dog Democrats in both chambers of Congress stood up to say, not so fast, not so fast. Apparently, those congresspersons didn't take too kindly to the idea of decimating the private health insurance industry -- an industry that doesn't exactly qualify as a shining example of free market capitalism, if you get my drift -- in order to make health care coverage available through a universal single-payer system. Early on, Obama realized that the votes just weren't there for it. He was faced with the choice of either abandoning health care reform altogether, or coming up with an approach that would be friendlier to private health care insurers.

Thus was born the idea of the individual mandate.  

Of course, from the very beginning, whether single-payer or individual mandate, Republicans linked arms to say, no way José, and when the dust cleared, not a single elephant voted for the Affordable Care Act. No big shocker there.

Unsurprisingly, the conservatives blamed Obama for not giving them a bill they could stomach. What kind of bill did they want? Let me see here, oh, how about the everything-is-just-hunky-dory-so-leave-everything-exactly-the-way-it-it-is bill, also known as the bill that exists in a parallel universe? I believe that's the bill they wanted. Too bad Obama couldn't see things their way. George W. Bush didn't seem to have any problems with that.

But let's be clear here. Most progressives weren't exactly thrilled with the Affordable Care Act either, since we fully realized that the whole thing was a great big godsend to the gargantuan private health insurance companies, the ones that are largely responsible for the whole health care mess in the first place. But we figured, oh well, maybe this will fly, maybe it will work out somehow, maybe private health insurance companies will be forced to get their act together once the Affordable Care Act goes into full effect.

But I'll admit -- I've had my misgivings. I'm kind of wondering if the individual mandate, if it stands, will fatten the coffers of private health insurers even more, and they'll keep jacking up prices anyway, and the government will have its hands tied and will be unable to stop them. Progressives have leveled some well-deserved criticism at the Affordable Care Act for its rather weak provisions regarding price control, which were undoubtedly written that way in order to appease blue-dog Democrats who are staunch supporters of -- and receive substantial campaign contributions from -- the private health care industry.

So, anyway, who knows what Anthony Kennedy will decide to do about the individual mandate? Who knows whether or not the ban on pre-existing conditions and other important provisions of the law will be allowed to stand if the individual mandate falls? Where's my crystal ball? Hold on a minute here, I think it rolled under my bed...

We'll see what happens in June when the Supreme Court hands down its decision. I'm not a betting man, but my guess is that Anthony Kennedy will vote to strike down the individual mandate, and that the rest of the law's provisions will be ruled null and void, since they were predicated upon the implementation of the individual mandate. Then we'll be back to square one with the whole issue of health care.

Just in case you forgot, let me remind you that Congress spent a LOT of time on the Affordable Care Act, from 2009 to 2010. Hours, days, weeks, months and years debating and arguing one of the most important pieces of legislation to come down the pipe in decades, maybe since the Roosevelt administration in the 1930s and 40s. And now, the whole thing could come to a great big fat zero in June.

But maybe that's too simplistic a view. Maybe -- paradoxically somehow -- if the Supreme Court strikes down the Affordable Care Act, it will be a good thing for progressives in the long run. It might make it clear that we face two stark choices, either the current private-insurer-based system we have now, or the single-payer universal-care system that the president originally envisioned before he was forced to water it down. Perhaps all well and good in the long term, but certainly not so good in the short term for the millions and millions of us out there who are uninsured or underinsured.

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