The Supreme Court will uphold the Affordable Care Act (ACA) not only because it's constitutional, but because to do otherwise would impose a massive judicial intervention in one of the economy's most complex sectors and derail a train with millions of individuals and businesses on board.
If the conservative justices disregard decades of legal precedents and strike all or part of Obamacare, they would not merely be tearing down the most sweeping piece of social legislation since Medicare and Medicaid, they would be taking away substantial consumer protections and benefits from millions of America's seniors, families and small businesses. The court would have to take responsibility for dismantling the law piece by piece, a task as difficult as it is unconscionable.
The law is two years old. Implementation is moving forward, and hundreds of complicated provisions are in effect, helping millions of Americans. States, businesses, doctors, hospitals and insurance companies have undertaken major, costly changes in anticipation of the improved insurance marketplace developing right now. All of this has been happening despite the relentless assault by Republicans who want to strike the law dead.
The fact is that serious wreckage would result from a bad decision. Attempting to unscramble this omelet would be a national nightmare.
How would the conservative justices implement such a devastating decision? What would they leave in the law's place? For example, when would the 2.5 million young adults who are on their parents' insurance plans because of the law get dumped into an insurance market that won't sell them affordable, quality coverage? What about the prescription drug discounts for seniors? Nearly four million Medicare beneficiaries saved more than $2.1 billion on prescription drugs in 2011 alone. When would those savings be terminated?
Preventive health services are now provided without co-pays in all new insurance plans and through Medicare. More than 86 million Americans are already benefiting. When would this benefit be stripped away? How would providers keep track of who gets it and who doesn't and when? Would lifetime limits on insurance coverage be reinstated? When and how? Would that cause changes in the pricing of health plans already being formulated? What about the job-creating small business tax credits -- when and how would they be taken away?
But that isn't all. Consumers are slated to get as much as $2 billion in rebates this summer from insurance companies that spent too little on medical care and too much on profit, administration and CEO salaries during 2011. Would the insurance companies get to keep that money instead of returning it to the consumers who got a raw deal?
How about the 50,000 people in the Pre-Existing Condition Insurance Plan (PCIP)? Spike Dolomite Ward learned about the health law when she was diagnosed with Stage 3 breast cancer. She was uninsured and had no way to pay for life-saving chemotherapy treatments until she enrolled. She has affordable insurance today through the PCIP -- a plan no insurance company would sell her. If the justices are going to revoke this life-saving coverage, when and how will they do that? Would she have to cancel her next chemotherapy treatment and hope that the cancer goes away on its own?
As Ian Millhiser pointed out during the oral arguments, if the court were to throw out the law "the result will be bedlam." He gives other important examples of the chaos that would ensue here.
Opponents of Obamacare, such as the Republicans in Congress, don't care about the train wreck that would follow such a decision, just as they don't care about doing anything to make health care more affordable and accessible. Two years of rhetoric later, they still have no ideas on what they'd replace the ACA with. Mitt Romney, the presumptive Republican presidential nominee, even has disavowed his own best idea for health care reform. It's called Romneycare, and it's the Massachusetts law that served as a model for Obamacare.
Because opponents of the law have no authentic policy alternatives to the Affordable Care Act, that brings us back to the Constitution. It does not serve them well here. As Senior Judge Lawrence Silberman of the D.C. Circuit U.S. Court of Appeals wrote in his decision upholding the law, the opponents of Obamacare "cannot find real support" for their challenge "in either the text of the Constitution or Supreme Court precedent."
The justices are supposed to act judiciously, respect precedent and not assume the policymaking role of Congress. It is for these and other reasons, explains Jonathan Cohn, that Silberman and four other prominent, respected main-line conservative judges and legal scholars argue that the Affordable Care Act is constitutional. Deeply conservative Columbia University constitutional law professor Henry Paul Monaghan says the law is valid based on "settled judicial principles."
If the justices ignore the Constitution and strike down this law, the result would be significant human pain, legal mayhem and economic disruption. They should be moved by the consequences of their decision, rule on the merits and uphold this law.