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Some industry experts are betting that the Supreme Court will uphold the health reform law or, alternatively, put it off until after the elections by upholding the Anti-Injunction Act, one of the foundations of the lawsuit.
The 1867 law blocks the filing of a lawsuit to stop enforcement of a federal tax law before it goes into effect. Under the individual mandate, Americans may have to pay a fine if they don’t obtain health coverage in 2014. That means the lawsuit would have to wait until the first payments are due in the 2015 tax season to have standing.
[See also: Kaiser's primer for the SCOTUS health reform hearing.]
The outcome of the lawsuit will decide how health care will be delivered and paid for in the future. The Supreme Court justices will hear arguments in the historic case on March 26, 27 and 28. A decision is expected in June.
The most likely scenario, about a 40 percent chance, is that they uphold the law, according to Tevi Troy, a senior fellow at think tank Hudson Institute, and a former deputy secretary of the Health and Human Services Department during the George W. Bush administration. Troy also views the same chances that the court overturns the mandate that all individuals must obtain health coverage but upholds the remainder of the law if it is separated from the mandate.
It is not a sure thing that the Supreme Court justices who are viewed as conservative will embrace the challengers to the health reform law. Two strains of conservatism tug at those justices, according to Paul Heldman, senior health policy analyst at Potomac Research Group.
“On the one hand, there is the question of whether or not this is a step too far in terms of giving Congress latitude to regulate commercial transactions,” he said at a recent briefing sponsored by the Nashville Health Care Council, an association of healthcare industry leaders in Nashville, Tenn.
[Political Malpractice: They all chant 'ACA repeal' but what could a GOP president actually do?]
“On the other hand, conservative justices tend to want to bow to heavy Supreme Court precedents that give Congress broad latitude and what it thinks it can regulate under interstate commerce, and what is necessary and proper to carry it out,” Heldman said.
These are among the opinions beginning to emerge as observers put forward their best sense of how the justices will rule on the constitutionality of the Patient Protection and Affordable Care Act, which became law in 2010.
Some of its terms have already been put in place, such as extending until 26 years the age that dependents may remain on parental insurance plans. But the major healthcare transformations take effect in 2014. The Supreme Court will decide whether those innovations can move forward.
In the starkest interpretation, the federal government views health coverage as another form of interstate commerce and healthcare financing, while the states, led by Florida, that brought the lawsuit, view this as an issue of individual liberty.
Both views touch a constitutional nerve among the justices, said Lyle Denniston, a legal author and journalist, who has covered the Supreme Court for more than 50 years.
[Commentary: The blindness and brilliance of Obama’s individual mandate.]
“There is a lot of tension ideologically among these justices and the divisions between the conservative ones and the progressive or liberal wing of the court. I that tension will be very much at work here,” he said.
Denniston thinks that ultimately the Supreme Court justices will punt by finding for the Anti-Injunction Act and bar litigation over the mandate until 2015.
“The minimalist thing to do is to kick the can down the road and let the case go until after the election,” he said.