William Maruca is a partner with Fox Rothschild in Pittsburgh, Pennsylvania whose practice focuses on health law and corporations. He also edits a blog on healthcare law focusing on issues associated with healthcare IT. He spoke with MedCity News about the implications of the U.S. Supreme Court deciding to review the health care reform law.
Q: What are some of the implications of the U.S. Supreme Court agreeing to review the constitutionality of the healthcare reform law?
A: It’s no surprise they have taken the case. I think some of the threshold questions are: Will they reach a decision on the merits or rely on a technicality to delay it? I have seen critics say the challenges are not yet ripe for review because no one has had to pay a surcharge yet and the justices might dodge the question saying it is too soon. But that’s unlikely to happen. I do not think it’s likely they will dodge the issue. Then there is the timing question — when will this hit the streets? That is expected sometime in the late spring or early summer.
I think it’s interesting that at the time the law was being debated there was very little attention paid to the individual mandate. And my suspicion is that’s the part the insurance companies actually liked. The Tea Party complained about it, but the insurance companies did not. If that is the only piece that the court strikes down, the insurance companies will be the big losers.
The strange thing is that the issue of an individual mandate that is so contentious has been raised before — by our founding fathers, no less! According to the Forbes article earlier this year, President John Adams signed a law authorizing the creation of a government-run marine hospital service and required privately employed sailors to purchase healthcare insurance.
Q: Is there anything the members of Congress could have done when they were crafting this bill to avoid a constitutional challenge?
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A: I think a fairly important mistake and strategic error they made was with the wording [of the individual mandate]. If they had simply called it a tax rather than a penalty [for people who do not buy health insurance], then from a constitutional perspective it absolutely has the right to tax. But do they have the right to charge people who do not buy health insurance a penalty or a fee? That was a strategic decision made in March last year. And remember what a chore it was to get this healthcare reform law passed. Making any changes like you would do if you had more votes would have prevented its passage. Some constitutional issues could have been improved at the time, but that was not politically feasible.
Personally, I think the most likely outcome is the Supreme Court justices will approve the entire act. The second most likely outcome is the justices will do like a number of lower courts have done and only strike down the individual mandate. The least likely outcome is that they will strike down the entire law.
Q: What if the Supreme Court rules that the law is unconstitutional?
A: It depends on whether they knock out the entire law or just the individual mandate. If it’s just the individual mandate and the rest of the law stays in place, the insurance companies will lobby like crazy for alternatives. Another reason why I think it’s less likely that it will invalidate the entire law is a lot of states and large employers, nonprofits and companies have already taken action to restructure their businesses in anticipation of the law going into effect.
There will be changes in healthcare with or without this law. For instance, one of the initiatives in the healthcare reform act was a shared saving program for accountable care organizations. ACOs are a network of providers that try to provide the same level of care at lower cost. The ACA will allow qualifying ACOs to share in the savings that would be achieved by the Medicare program. Many private insurers are already contracting with ACOs under similar programs.
Q: The individual mandate is tied to the commerce clause –how successful have challenges to that law been?
A: The extent of Congress’ power under the commerce clause has been hotly contested since the New Deal era. In the Civil Rights era, the Supreme Court interpreted the commerce clause very broadly to apply even to a small barbeque restaurant it claimed did not engage in interstate commerce. More recently the Supreme Court upheld Congress’ right to regulate the use of medical marijuana in a person’s home.
Q: Are there other issues being raised by the challenge to the healthcare reform law?
A: Severability. If you strike down the individual mandate, does the law survive? The lower courts have gone both ways on that issue, but most of the courts that have struck down the individual mandate have preserved the rest of the law. There have also been references to the anti-injunction act in which the court could delay reviewing the case until the individual mandate law goes into effect in 2013.
