The conventional wisdom following the oral arguments before the Supreme Court last week is that, at the least, the health insurance mandate portion of the Affordable Care Act is going down. Many observers thought it likely that the Republican-controlled court would strike down the entire bill. Either way, it will be necessary to do some serious rethinking of health care policy.
The simpler case, where the mandate is struck down but most of the rest of the bill is left intact, could likely be repaired without great difficulty. The mandate that everyone buy insurance was a quid pro quo with the insurance industry. Insurers are prohibited from discriminating against sick people in issuing insurance policies; in exchange the government is going to force healthy people to buy insurance.
There is a real problem of adverse selection in this case. If everyone knows that they can wait until they get a serious illness to buy insurance, then only people who are in bad health will have insurance and the cost will be very high.
There are mechanisms that can be used to get around this problem. They generally involve imposing a higher price or excluding coverage of pre-existing conditions for those who delay buying insurance. This would substantially reduce the number of people who might try to game the system.
Even assuming that the Republicans keep control of Congress this fix may be possible. The group that faces an immediate problem in a world with Obamacare, but without mandates, is the insurance industry. It can always count on a sympathetic ear from Republican politicians.
However, we will be in a qualitatively different world if the Court rules that the bill in its entirety is unconstitutional. That puts health care reform back at square one.
A number of people have commented that this would be an opportunity to pursue Medicare for All; a program that extended Medicare coverage to the entire population. This would be a far more efficient system, since it would eliminate the administrative waste created by private insurers. It would also be far more effective in restraining payments to providers than the current system.
While a universal Medicare program is desirable from the standpoint of both public health and economic efficiency, it is hard to see how losing in the Supreme Court gets us there. We didn't get Medicare for All before because its supporters did not have anywhere near the firepower necessary to overcome the power of the insurance industry, the pharmaceutical industry, the medical supply industry and other provider lobbies.
Perhaps a defeat in the Supreme Court will lead to a newly energized public that will demand that their representatives in Congress clean up the health care system and give us universal Medicare. That would be great, but it is difficult to see it happening. It certainly did not happen the last time a moderate health care reform measure went down in flames in 1994.
If we aren't going to win by going through the front door, we will have to go around the back door. That means undermining the base of power of the health care industry by taking away their money. This is exactly what the Right did to progressives. They were not content to just win elections; they wanted to destroy all the bases of support for progressive politics.
This meant undermining unions, first in the private sector and now in the public sector. It meant neutering institutions like the Corporation for Public Broadcasting and Legal Aid and even putting universities and colleges on the defensive, making them fearful that they could lose funding if their faculty and student bodies appeared too progressive.
While the right has far more money, and therefore levers of power, than progressives, we can use the inefficiency of our health care system against the industry. There are enormous potential cost-savings from taking advantage of the more efficient health care systems in other countries.
For example, surgeries that may cost $200,000 in the United States can be performed in top quality facilities by well-trained physicians in India or Thailand for one-tenth this amount. If states passed measures that allowed insurers to share the savings with patients from having major medical procedures performed in other countries, and also took steps to ensure quality control, it is likely that many people would take advantage of this option.
Increased use of foreign facilities would both reduce the demand for highly paid surgeons -- putting downward pressure on their bloated salaries -- and also educate the public about the incredible inefficiency of the U.S. health care system. Every person who had successful heart surgery in India and walked away with $50,000 in their pocket would be a billboard proclaiming the wastefulness of the U.S. health care system.
Going halfway around the world for health care is crazy. But the reality is that we have no better way of fixing the current system. We can keep losing by doing the same old things or we could try something new and hope for a different outcome.
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