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Health reform’s legal challenge 101

Posted March 18, 2012, at 3:23 p.m.
Last modified March 18, 2012, at 3:39 p.m.

I’m not a lawyer. I have a better understanding, however, of the Affordable Care Act after attending University of Southern Maine’s and the University of Maine School of Law’s public forum about legal challenges to the act, including its constitutionality and what it might mean if the law or part of it is overturned.

The forum provided an overview of the law and a discussion between panelists with constitutional law and health policy expertise. Speakers represented different perspectives which either supported or challenged the law. The civility of the speakers and standing-room-only audience was impressive. Everyone truly wanted more information about the legal debate to be heard by the U.S. Supreme Court at the end of March.

I was surprised about a recent Kaiser Family Foundation poll revealing nearly three-quarters of Americans mistakenly believe the ACA creates a government-run health insurance plan. It does not. It builds on our current system, allowing those who get health insurance from their employer to continue to do so and providing subsidies to people who can’t afford coverage.

It creates insurance exchanges where people can compare plans that cover essential benefits including mental health services. Members of Congress will be required to access coverage through exchanges.

It does away with denials based on preexisting conditions and places rules on insurance companies limiting administrative costs and profits. Children can remain on their parents’ policies until age 26. Preventive services, including cancer screenings for women, don’t require co-payments. Small businesses receive tax credits for providing coverage.

Too good to be true? Perhaps. The expectation that a major piece of legislation aimed at tackling one of our nation’s biggest, most expensive problems will be perfect, however, is absurd. The law does little to control rising health care costs. Funding subsidies over time will be difficult. The penalty for not purchasing coverage remains the most controversial aspect of the law; this is a good segue into its legal challenges.

There are four issues being considered by the court. The first is whether the Anti-Injunction Act prevents challenges to the ACA at this time. A lawsuit can’t be heard in any court if its purpose is to stop the collection of a tax. If failure to pay the ACA’s individual mandate is determined by the court as a tax penalty, the court will not be able to pursue the challenge until the law goes into effect and a penalty is actually collected. Circuit Court decisions on this issue have been mixed.

The constitutionality of individual mandate is also challenged, the argument being that requiring all people to obtain health insurance exceeds congressional powers to regulate interstate commerce under the Constitution. The court must decide if an individual’s failure to pay for health care expenses creates cost-shifting that impacts the U.S. health care market as a whole and if that market is unique. If so, such economic activity that impacts all U.S. citizens and commerce would give Congress the power to regulate.

The last two issues include whether a decision repealing the individual mandate would repeal just that section or the entire law and whether the Medicaid expansion is constitutional. The decision regarding whether only part or the entire law would be overturned is up to the court, since there is no “severability” clause in the law.

Some say the Medicaid expansion challenge is moot. No assumptions should be made, however, given the court has the opportunity to argue the issue. The case must be made that the federal government will be clear on the obligations of states accepting federal funds for the expansion and may not force states to comply by employing spending power in a coercive manner.

In other words, it must be clear the government will use financial incentives to encourage, not force, states to participate in the expansion.

I’ll leave the rest to the lawyers.

Ann Woloson is the executive director of Prescription Policy Choices. She lives in Belgrade Lakes.

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