Those who are suing to overturn the mandatory health insurance requirements in the comprehensive reform bill apparently believe a success, perhaps built on their victory in Virginia this week, will be both a major embarrassment for the President and lead to the disintegration of the entire scheme.
They may be very, very wrong. In fact, they may be throwing the President into the proverbial political briar patch. Eliminating the insurance coverage requirement won't hurt those who lack adequate coverage today, though it may seem like yet another defeat for the left-leaning single payer crowd. The real losers, though, will be some powerful institutions, particularly insurers and hospitals.
That's because the compulsory insurance idea was basically a sweetener to induce these groups to support Obama's plan, which they ultimately did. Insurers were wary of requirements that they cover all comers regardless of health status, extend coverage to older dependent children and spent a minimum of premium income on actually providing care. These new rules should cost them money.
But these potential costs could be offset by selling policies to the tens of millions of uninsured Americans who the law would compel to purchase it. A successful company could anticipate a significant revenue pick up that would help the bottom line.
To a lesser extent, doctors and hospitals were asked to comply with new rules that could limit their income. But these potential restraints would be balanced against the elimination of bad debt, which can be quite significant. The idea of being in a business where no bill goes unpaid is not an unattractive one.
In a classic legislative trade, everyone gave something and everyone got something. It is that bargain that the conservative court challenges are seeking to unravel. If it succeeds, those hurt most will be the insurers who have made compromises, but will be denied what they were promised in return. The uninsured, by contrast, will retain easier access to coverage.
One can only hope that Obama will still be President if and when the courts decide that mandatory coverage is unconstitutional. It is easy to imagine his rueful demeanor as he shrugs and explains our duty to accept court decisions, however conservative and/or wrong they may be. It is not inconceivable that some in the blogosphere will then suggest a conspiracy to yield this outcome where those needing care will get help without paying off providers.
More than a few constitutional scholars doubt this will happen and express confidence that the law will be upheld. They may be right. But if they're wrong, those who are hurt will not be the millions of Americans who the legislation provides with insurance they now lack.