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The Long Game for Health Reform

Posted: 04/23/2012 1:45 pm

By Matthew La Rocque

"Mr. Chief Justice, and may it please the court..."

So began each day of last month's oral argument in Florida v. Department of Health and Human Services , the Supreme Court's review of the Affordable Care Act (or if you like, "Obamacare"). But as the nation's highest tribunal heard Solicitor General Donald Verrilli's defense of the law, its more conservative brethren peppered him with increasingly pointed questions; the court did not, in fact, seem pleased.

Indeed, with each wit-laced quip from Justice Scalia and skeptical probe from Justice Kennedy, it appeared increasingly plausible that the high court could strike down the heart of President Obama's landmark health care legislation -- an individual mandate that requires all Americans to purchase health insurance -- if not the whole law.

American progressives are already bemoaning the possibility as a dramatic step backwards for health reform - a decision that, on the heels of a bruising health care debate in 2009, could bury the issue in a dysfunctional Congress for the foreseeable future.

But if that were to happen, would health reform really be doomed to the historical dustbin?

If U.S. history is any guide, many of this country's noblest causes have staggered jaggedly toward justice. Where the Supreme Court is concerned, some have even taken steps backward.

Long before the Civil Rights movement began in earnest, the court's 1896 decision in Plessy v. Ferguson set the stage for more than 50 years of turmoil by affirming "separate but equal" institutions as lawful under the 14th Amendment. It took sit-ins, marches, and even a Supreme Court willing to reverse established precedent before Jim Crow laws could be toppled. The fight to uphold and strengthen civil rights protections continues to this day.

In a similar way, the gay rights movement has followed a path that is anything but linear. With each legislative vote, ballot initiative, and court decision over the past several years, gay marriage advocates have weaved through a maze of victories and setbacks that few could have predicted.

It should come as little surprise that the path of something as sweeping as the overhaul of our health care system would be just as treacherous.

Some believe that the consequences of overturning health reform's seminal victory are too great in the interim. Jonathan Gruber -- the MIT economist who helped persuade the Obama administration to include a mandate in the Affordable Care Act -- estimates that the law would insure up to 24 million fewer Americans if the mandate is struck down. These are frightening figures, to be sure.

But if the act falls in whole or in part, it will have still been a success for three key reasons.

First, the act will have demonstrated that even in the face of phenomenal polarization in Washington, serious health reform is possible. Although it was a compromise at heart, the Affordable Care Act has already fixed parts of the system that a majority of Americans find unacceptable; insurance companies can no longer deny coverage to children with pre-existing conditions, nor can they drop policyholders if they get sick. Even if the law is struck down and the insurance industry is allowed to return to those practices, Americans already know that Washington has the power to deliver an alternative.

Second, if the court overturns the law and Congress still wants to fix health care, lawmakers will be forced to turn toward less constitutionally dubious options that are ultimately more effective. For all that the Affordable Care Act did well, it does not provide a competitive alternative to private insurance, which will continue to inflate the cost of premiums at a rate that outpaces even Medicare's cost growth. To address the persistent problem of spending, Congress may ultimately have to consider a public option or a single-payer health system -- bold solutions that will ironically face less judicial scrutiny than the individual mandate.

Finally, though a rebuke by the court could admittedly stunt reform for years to come, it may also provide a crucial shot in the arm that the progressive movement lacked in the wake of the Tea Party uprising. In politics, adversaries and setbacks are often helpful catalysts.

As Martin Luther King Jr. told us all, "the arc of the moral universe is long, but it bends towards justice." So long as we remember our capacity to bend that arc and correct our path, progressives can turn to history for comfort that the Court's decision in Florida will be at most a speed bump and at best a wake-up call in our journey toward a more just America, and a more perfect union.

Matthew La Rocque is a Master in Public Policy student at the Harvard Kennedy School of Government. The leadership of the Democrat Caucus at HKS reviews and approves all op-eds that appear in this space.

 

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