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JAMA Forum Archive, 2012-2019: Health policy commentary from leaders in the field
JAMA Forum

Dinner Conversations—The Health Care Law and the Supreme Court

Dinner conversation about the Affordable Care Act (ACA) can turn an otherwise lovely evening with friends into eye-glazing tedium. I feared I had been the catalyst for such a transformation a couple of weeks ago when my husband and I had dinner with a friend, whom I’ll call John.

Diana Mason, PhD, RN

The conversation began with a discussion of the Republican primary race and John’s proclamation that all politicians were scoundrels. John, a well-read, self-taught, smart landscaper who is proud of being an Independent, admitted that he didn’t really understand the ACA but hated that he would be forced to buy health insurance. Self-employed, he has been unable to afford health care insurance and is probably 8 to 10 years away from Medicare, during which time his odds of needing health care will only increase. “Why should I have to buy health insurance?” he asked.

John is not the only one asking this question. The constitutionality of the individual mandate to have health insurance is perhaps the most contentious of the 4 issues that the Supreme Court is considering this week in its review of the ACA. The first is whether the “penalty” that John would have to pay if he doesn’t purchase health insurance is really a tax. If it is, then the Court can invoke what’s called the Tax Anti-Injunction Act and decide not to rule on the constitutionality of the individual mandate until the penalty is actually imposed on someone—something that will not happen until 2015. If the Court rules that it is not a tax, then the second question is whether the individual mandate is constitutional. If it is ruled unconstitutional, then the third ruling would be on whether the whole law or just the individual mandate is unconstitutional. Finally, the Court will consider whether the law can require states to meet new standards for Medicaid coverage.

Although first proposed by a conservative think tank, the Heritage Foundation, the individual mandate has become a lightning rod for those opposed to the ACA. I pointed out to John that he would probably qualify for subsidies to purchase insurance that are built into the ACA, and then I explained why the individual mandate was included: it’s 1 part of a 3-legged stool for reforming the health insurance market. The other 2 parts require insurers to cover all those with preexisting conditions who want to be insured and prohibit insurers from charging sick people more for coverage than they charge healthier people. But if John and others like him don’t purchase health insurance when they’re healthy, the insurance industry can’t affordably do this, forcing more people out of the insurance market.

Why should physicians, nurses, and other health care professionals care about John’s concerns and the Supreme Court’s deliberations? The Kaiser Family Foundation’s Larry Levitt has identified some of the policy and political implications, but here are some others.1

First, the ACA is going to enable John and other people who are uninsured to be able to access primary care and other health services. If the individual mandate is struck down by the Court, it removes a major approach for making coverage affordable. New Jersey tried to implement a health reform law without it and failed. Massachusetts’ health reform law includes it and has been credited with improving access to care and reducing health care costs. For those of us who care about the uninsured, a Court decision that the individual mandate or all of the ACA is unconstitutional leaves John and about 32 million other people uninsured, although some have argued otherwise.2

Second, health care professionals who accept Medicaid may actually have a greater burden of care if the law is upheld. The ACA requires states to provide Medicaid coverage to people younger than 65 who earn no more than 133% of the poverty level. Some states have objected to this requirement, even though the federal government would pay 100% of any additional costs to the states between 2014 and 2016, then 90% after that. John may actually qualify for Medicaid at some point, but will there be clinicians who will see him? The ACA includes strategies for developing the nation’s primary care workforce—something that the Massachusetts experience has shown to be essential to meeting the increased demand from an expansion in the number of insured people. If the law is ruled unconstitutional, this aim will be constrained.

Finally, most health care professionals I know believe that our health care system is badly in need of reform. The fee-for-service payment structure of most public and private health coverage has led to costly, unnecessary, uncoordinated care. Most health systems are gearing up for major changes in how care is provided and paid for, including by buying physician practices and hospitals. At an Innovations Summit held by the Centers for Medicare & Medicaid Services (CMS) in January of this year, examples of new models of care and more efficient approaches to current models showed that we’re already gearing up for bundled payments, payment for medical or health homes, and patient-centered care. What happens to the flurry of innovation if the ACA is ruled unconstitutional? John doesn’t just need a check-up. He needs an interprofessional health care team who can help him to stay well and to coordinate his care if and when he develops chronic illnesses.

I contacted CMS to get their take on what would happen to some of the changes that are already under way if the ACA is deemed unconstitutional. Kathryn Ceja, a press officer for CMS, replied via e-mail that “... we can't speculate on legal matters. CMS is moving ahead with implementation of the law.”

You’ll have a chance to listen to the Supreme Court sessions this week by audio recordings that are expected to be posted online by 2:00 pm on March 26 and 27 and by 4:00 pm on March 28. These will be found at www.supremecourt.gov. The recordings may be more interesting than my dinner conversation with John. By the time I was through describing the 3-legged stool, our host was suggesting that we move on to dessert.

About the author: Diana Mason, PhD, RN, is the Rudin Professor of Nursing and Co-Director of the Center for Health, Media, and Policy at the Hunter College, City University of New York, and President-elect of the American Academy of Nursing.
Goldman TR. The “sleeper” issues before the Supreme Court as it reviews the Affordable Care Act. Health Aff (Millwood). 2012;31(3):471-474.
Sheils JF, Haught R. Without the individual mandate, the Affordable Care Act would still cover 23 million; premiums would rise less than predicted. Health Aff (Millwood). 2011;30(11):2177-2185.