Will the Supreme Court Kill Obamacare?

This week, the Supreme Court heard 3 days of arguments mostly about whether the Individual Mandate that is part of the Affordable Care Act a.k.a. Obamacare is constitutional.   This challenge was originally started by a group of 26 Republican state attorneys general with the Supreme Court eventually agreeing to hear the arguments this week.

Until the hearings, many believed that the Individual Mandate would be safe because it was protected by the commerce clause of the Constitution.  But with the tone of the questions pursued by the conservative judges, many now believe this is going to be another one of those 5-4 decisions favoring the right.

Here are some of Paul Krugman’s thoughts from his recent op-ed Broccoli and Bad Faith.

Given the stakes, one might have expected all the court’s members to be very careful in speaking about both health care realities and legal precedents. In reality, however, the second day of hearings suggested that the justices most hostile to the law don’t understand, or choose not to understand, how insurance works. And the third day was, in a way, even worse, as antireform justices appeared to embrace any argument, no matter how flimsy, that they could use to kill reform.

Let’s start with the already famous exchange in which Justice Antonin Scalia compared the purchase of health insurance to the purchase of broccoli, with the implication that if the government can compel you to do the former, it can also compel you to do the latter. That comparison horrified health care experts all across America because health insurance is nothing like broccoli.

So how does the individual mandate figure into all of this?  It is part of a 3-legged stool.  Take one of the legs away and the stool collapses.

The first leg:

Insurers cannot deny anybody health insurance based on a pre-existing condition.

Of course this is the point of Obamacare, to provide insurance to those millions of people who have been going without insurance.

The second leg:

All people, including those who are healthy must purchase health insurance.

This is the controversial Individual Mandate.  It is here because if we force insurers to take in all of the sick people, we need to add healthy people to the risk pool or else the premiums will skyrocket.

In addition there is the issue of so-called free riders.  If someone who didn’t sign up for insurance needs hospital treatment because of either illness or an accident, we can’t just deny him treatment so essentially the cost is borne by the other policyholders.

The third leg:

Since we are requiring everybody to buy health insurance, the government will subsidize the cost for those least able to afford the premiums.

So the important question is whether Obamacare would survive if the Individual Mandate is struck down.  And the answer to that is no.  While its opponents may argue about being forced to buy insurance or even broccoli, in reality they have seized upon what they feel is an Achilles’ heel.  And with a very partisan Supreme Court agreeing to hear this case, they may well kill Obamacare when they announce their decision in June.

And if that happens, the question will be what now?  There has been a lot of talk by Republicans about repealing Obamacare but no plans on what they will do to replace it.  Paradoxically, this may indeed mobilize the Democrats this fall!