The NYTimes reporting suggests a 5-4 split against ACA is likely:
Justice Kennedy, along with Justices Samuel A. Alito Jr. and Antonin Scalia and Chief Justice John G. Roberts Jr. all asked questions suggesting that they had a problem with the constitutionality of the mandate requiring most Americans to buy insurance. Justice Clarence Thomas, as usual, did not ask any questions, but he is widely expected to vote to overturn the mandate.
As does CNN’s Toobin’s analysis:
This is interesting. Part of the issue is how much of the law would fall if they turn against it? Would we still be able to prevent insurers from dumping patients and refusing to cover chronic conditions if the mandate falls? Will both provisions be struck down? All provisions?
I think a strategic error was made in not describing the penalty as a tax. Because no one doubts congress’ power to tax, and after all, it made sense to tax the uninsured considering as a group they cost the taxpayers $43 billion a year in unpaid medical bills.
The other interesting outcome may be political. Without Obamacare to rile up the base, what issue will Republicans have left come next fall? This was their touchstone, and if the Supreme Court pulls the rug out from under them, they’re going to have to come up with a new form of librul fascism to rail against for November.
In the end this may be an opportunity or a catastrophe for medical care depending on how we are led into the future. The failure of this law may result in a tax-supported single payer system. It may result in expansion of health exchanges to cover the uninsured. It may result in a new national flat tax, like Japan’s, that results in income-based subsidization of healthcare costs. All of these things are clearly constitutional based on the congressional ability to tax.
The worst outcome would be if we saw another 15 year delay in addressing the crisis of rising health care expenditures and coverage for the uninsured. Or, if it became delegated to the states to create individual universal systems as, sadly, most red states have no financial capacity to afford it. Already the southern and para-Mississippi states have higher obesity rates, poorer objective measures of health, worse infant mortality, and higher bankruptcy rates etc., this will likely worsen these disparities. California, New York, Massachusetts (will they lose their mandate?), Maryland and other states which are the major federal revenue generators could probably manage it if they could convince their population to support universal healthcare legislation with additional taxes, but a patchwork approach will create unnecessary complexity. What if a Pennsylvanian gets a surgery in Maryland? What if someone wants to chose an out-of-state hospital, which they very frequently do? What about emergency care for out-of-staters? Will this just further increase disparities between the states until the we see an ever worsening downward slope in quality of life as you approach the Mississippi river? Will states like Texas that can probably afford reform refuse to enact any out of cold-hearted laissez-faire libertarianism?
It’s sad, but oh well. America gets the government it elects.