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
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.