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Is the health care overhaul unconstitutional? Experts weigh in.

November 14, 2011

That’s the question the Supreme Court is due to answer next year.  The justices haven’t set a date yet, but the deliberations are expected to take place during the spring of 2012.

At the core of the case is the question- can the federal government force Americans to buy health insurance? This “individual mandate” holds up a lot of the other provisions of the health care overhaul.

Health insurance agencies can afford to take on some of the market reforms and regulations in the Affordable Care Act (including accepting people regardless of preexisting conditions, and no lifetime  limits) because this individual mandate guarantees that they’ll have more customers, many of whom should be healthy and less expensive to take care of.

The Obama administration argues that the individual mandate is legal because it concerns “interstate commerce”- if people don’t have health insurance, they end up in expensive emergency rooms, which raises the cost of medical care for everyone. The ability to regulate interstate commerce is covered under the Constitution’s “commerce clause.”

Opponents of the individual mandate say the commerce clause doesn’t give the federal government “limitless regulatory power,” which would include requiring Americans to buy health insurance.

What will the Supreme Court decide? I posed that question to a panel of health care experts earlier this year during our “Policy and Pinot” forum on the health care overhaul. Here’s a snippet of what they had to say back then-

Is the overhaul in danger of being overturned?

Christine Ferguson- research professor at George Washington University. Former Commissioner of the Massachusetts Department of Public Health, Director of the Rhode Island Department of Human Services, and Deputy Chief of Staff to the late U.S. Senator John H. Chafee.

I think it’s maybe 50/50, 60/40, depending on which side of the issue you’re on, that the Supreme Court could ultimately hold that the enforcement for the individual mandate is unconstitutional. There are a lot of arguments on both sides… I think at the end of the day, the real question is the law as a whole going to be impossible to implement if that were to happen, and I think the answer is no, it’s not impossible to implement, because the individual mandate doesn’t really kick in until overtime. And the penalty is not as big as it would necessarily be to guarantee that everyone be covered.

Why did Massachusetts use an individual mandate in its health care overhaul?

Tim Murphy- the President and CEO of Beacon Health Strategies and the former Secretary of Health and Human Services for the Commonwealth of Massachusetts.

We felt that a minimal requirement to have a form of health insurance made sense… it was mostly around risk pools. One element of it was we need to have healthy folks in[insurance plans]. In Massachusetts we had found that a lot young healthy people chose not to buy health insurance. Now they did that for purely rational, economic reasons. The state laws had so regulated the insurance markets in the state… that candidly you’d be a stupid person to buy health insurance  if you were young and healthy in Massachusetts…. The changes we made solved that problem and it made sense…It did come down to some level of personal responsibility. We struggled with the fact that people in Massachusetts could walk into an emergency room, and then basically seek services they would be provided and their cost would be socialized.

Does Rhode Island need the individual mandate for the health care overhaul to work?

Lt. Governor Elizabeth Roberts-

I think what’s important is that we commit to everybody being insured. And I think that it’s exactly right, that some people will choose not to be insured either because their economics force them to that choice, or because they make a choice based on how they feel… We need to make sure we don’t pass costs around. Right now, if people choose to stay out of the market, we pick up that cost in others health insurance, it changes the cost equation for commercial and other insurance through group coverage. We need to get everybody in this pool for us to have this system make sense and for us to create change that impacts everyone equally.

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