Conservative Judicial Activism Must Strengthen Health Care Implementation

On Monday, January 31st, a second federal court ruled against the Affordable Care Act (ACA). A Florida judge opined that the individual responsibility provision was unconstitutional and therefore made the entire Act invalid. The White House and reform supporters were quick to point out that two other courts and numerous judicial scholars hold a contrary opinion. Nevertheless, the ruling, even if eventually reversed, will give added hope to the Tea Baggers and other opponents of reform. Health care advocates must continue to stand by the ACA because it is the law of the land.

While the judge did not enjoin efforts to implement the ACA, his decision will still have consequences. In the near term, the ruling will give added impetus to efforts in Congress to repeal the ACA and it will give cover to ideologues at the state level who are seeking to “nullify” the Act. In fact, supporters of the judge’s decision are already arguing that work to implement the ACA may now be put on hold. This is sure to feed even more energy to efforts to undercut the ACA at the state level.

Advocates should not encourage Congress to begin looking at alternatives to the individual responsibility requirement. Such efforts would only make protection of the ACA more difficult and confusing. This issue will continue to play out in the courts over many months. Because the appeals process will not offer the Supreme Court a chance to rule for many months, it is likely that a final decision on the ACA will come in 2012, an election year.

The crux of the constitutional question is this: can the U.S. government require individuals to purchase insurance if they do not want it?

Because Congress moved away from a public option in favor of private insurance, they stuck themselves with a problem: how to get everyone into the system. They followed the lead of Massachusetts and required everyone to buy on the private market.

If the individual responsibility provision is overturned by the Supreme Court, the whole scheme may crash in upon itself. The underlying economics of the ACA presume that the added business and broader sharing of risk that result from everyone having health insurance will pay the cost of new consumer protections like the elimination of preexisting conditions, elimination of lifetime limits, coverage for children, and prohibitions on medical underwriting. If we eliminate the mandate, then we eliminate the economic underpinning for these critical consumer rights.

In the short term, this decision will feed red meat to the nullifiers and opponents at all levels. So what should progressive advocates do now?

First we need to continue to press forward with the implementation of the Affordable Care Act. The Florida decision is only one opinion and is viewed by scholars as outside of mainstream judicial opinion. We can expect a quick appeal of the case.

An individual mandate may be the only way to preserve the consumer protection advances included in the ACA. However, until there is a definitive resolution of this in the courts, we need to stand by the ACA and continue to maintain that it is the law of the land.

Monday’s ruling has left everyone, at best, in a state of confusion. While purporting to invalidate the entire Act, the decision did validate the ACA expansions of Medicaid. The judge also issued no injunction, suggesting that the federal government will follow the act anyway.

These distractions only strengthen the need for health care advocates to wage vigorous state efforts to implement reform. We must fight hard to overcome the confusion in hostile legislatures and among policy makers intent upon destroying the historic advances of health care reform.

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