Today is the day when the Supreme Court will make a lot of people unhappy.
There’s simply no ruling on the Affordable Care Act that will satisfy a majority of Americans. Polls show that people dislike the law. But they dislike the status quo. They dislike a partial solution.
They want health care reform, but not this health care reform.
The interest groups, too, are divided in their allegiances. Some businesses would benefit from the erasure of the law. Many in the health industry, who have reorganized their business strategies, would lose out. The health plans, which negotiated a complex deal to take cuts in exchange for new customers, stand to lose quite a lot if the unpopular individual mandate comes down.
The Democrats want a vindication of their signature Affordable Care Act, but if they somehow get it, they would still be saddled with responsibility for a law that faces fierce public opposition. Since the law was passed in 2010, disapproval by at least 40 percent of the population has been unflinching—and recent polls rate it higher as the decision approaches. Republicans in Congress have vowed that they will move forward with their efforts to repeal the law if the Court doesn’t do it for them, a message that plays well with both Republicans and independents.
“For the Republicans, it turns out to be a good issue,” said Robert Blendon, a pollster and professor at the Harvard School of Public Health. “It motivates their base … and there are more independents who say they don’t like the law than like it.”
Republicans want the law wiped off the books, but such a ruling would be likely to have unpleasant ripple effects they might not like, by creating policy turmoil and undoing some very popular benefits.
They also wouldn’t have “Obamacare” to kick around anymore, meaning they would lose a base-galvanizing refrain. And Americans’ fundamental disagreements about the best approach to health reform means they could be the next beneficiaries of public disapproval once they suggest a replacement approach.
“We have shown in enough cases that Republicans and opponents of the Affordable Care Act generally like lots of things about the Affordable Care Act,” said Mollyann Brodie, the director of public opinion and media research at the Kaiser Family Foundation, who has done extensive polling on the law. “And, in fact, opponents of the Affordable Care Act do think there are problems in our health care system that should be solved.”
The public wants to get rid of the individual mandate, the centerpiece of the Court challenge and, by far, the law’s least-popular provision. Only about 30 percent of the population supports it, even though the law’s congressional authors and the White House describe it as a linchpin needed to keep other provisions in place. Losing the mandate could alienate the insurance and hospital industries, key constituencies that helped get the law passed. The law offered them a trade-off between pay cuts and more customers. If the mandate goes, they would get only cuts. Consumers could get prices even higher than those they face today and might see their local hospitals close.
“If the link were to be broken, that will really mean that these market reforms could backfire on consumers,” said Karen Ignagni, the president and CEO of the health insurance lobby, America’s Health Insurance Plans. “Nobody wants that.”
The 26 states fighting the law want out of its massive Medicaid expansion Yet that provision, which would insure some 16 million Americans, is actually pretty popular. Losing that provision would create huge gaps in the insurance system, leaving a law that provides financial assistance to the middle class but not the poor.
The Court might just want a way out, and it’s been presented with one in the way of a legal technicality. But a ruling to postpone the case’s tough choices would likely be the most unpopular of all. Everyone wants an answer now.
The unfortunate choices facing the Supreme Court are a reminder of why it was so difficult to pass health reform in the first place. And they are perhaps an explanation of why so many of the justices have immediate travel plans. According to the Associated Press, Chief Justice John Roberts, who is widely expected to pen the majority opinion, will be teaching a course in Malta by Monday.
This article appears in the June 28, 2012, edition of National Journal Daily.