Bettor's guide to health reform at the Supreme Court


The healthcare industry's most momentous weeks are ahead, as the U.S. Supreme Court holds an unprecedented three days of oral arguments about whether the Affordable Care Act is constitutional.

There is enormous anticipation about this case, given the split lower court decisions and the huge role healthcare delivery now plays in the U.S. economy. Indeed, the California Endowment held a moot court on the case earlier this month. Former Gov. Gray Davis was among the "justices" who heard the arguments, which were delivered by the former dean of Stanford University School of Law and a partner at one of Los Angeles' biggest law firms.

I give here my odds of particular events that will transpire around the case, based on the personalities of the Supreme Court justices, today's political atmosphere and a variety of other factors.

Clarence Thomas asks a question during oral arguments: 7-1
Thomas hasn't asked a question during oral arguments since 2006, and he often takes a bored, if not indifferent, demeanor during this phase of litigation. Legal journalist Jeffrey Toobin noted in a New Yorker article last year that Thomas' dicta and legal rationales are based almost entirely on what existed in the United States during the era of the Founding Fathers. Since Blue Cross was probably something drunk during the Whiskey Rebellion, Thomas likely believes the Affordable Care Act is unnecessary--a conclusion Toobin reached in his article. So why be curious now?

Antonin Scalia asks snarky questions during oral arguments: Even money
Anyone who listens to Nina Totenberg's terrific Supreme Court reporting on NPR knows of her bright on-air reading of oral argument transcripts. Scalia is always portrayed as grumpy and skeptical. Since he often votes in a bloc with Thomas, there's also no reason to believe he will change.

John Roberts votes with the majority: 3-2
Roberts, an appointee of George W. Bush, is one of the most conservative court members. But as the New York Times recently reported, this will be a landmark case, one that will likely secure Roberts' legacy as Chief Justice of the United States. Although he is as conservative as Thomas and Scalia, he is not an iconoclast.

Anthony Kennedy is the swing vote: 8-5
Kennedy also is part of the court's conservative bloc, but since Sandra Day O'Connor retired, he often serves as the swing vote in important cases. Given the lower courts issued conflicting decisions and most of the opposition's arguments, Kennedy will likely represent the deciding vote.

The Affordable Care Act will be cited as prolonging and saving lives during oral arguments: 10-1
The single biggest mistake of the Obama administration has been its failure to point out that by making insurance more readily available and affordable, millions of Americans will live healthier--and longer--lives. Given the obsession in the United States with living forever, this seemed to be the simplest argument to paint the Affordable Care Act's opponents into a corner. But it never seemed to occur to President Obama's team of technocrats to trot out such rhetoric. As a result, the nation remains profoundly split on the law.

Moreover, since oral arguments are about constitutional issues rather than emotional ones, this argument is unlikely to surface. But the Supreme Court is comprised of human beings. Pointing this out couldn't hurt.

The individual mandate is struck down: 5-6
The individual mandate to purchase healthcare insurance is legally the most vulnerable portion of the ACA, even though the tax penalties that would be imposed if coverage is not purchased is entirely toothless, and even though it's entirely legal to jail citizens who do not pay their taxes elsewhere. I do not expect it to emerge unscathed.

The ACA prevails in its entirety: Even money
The vote on this issue will likely be a one-vote majority. Thomas, Scalia and Samuel Alito will certainly vote against the law. Elena Kagan, Sonia Sotomayor, Stephen Breyer and Ruth Bader Ginsburg will likely vote to preserve it. Kennedy and Roberts are the big question marks. And there is one overhanging issue likely to trouble Roberts and Kennedy, who tend to be longer-term thinkers compared to the rest of the conservative bloc:

Single payer eventually prevails if the ACA is declared unconstitutional: Even money
Should the court rule that all of the ACA is unconstitutional, it will spell the eventual doom of commercial-based healthcare insurance. Costs will continue to spiral upward, and within a decade, it will run about $30,000 a year to insure a family. Many individuals and businesses will do the numbers, and simply decide to opt out entirely, relying on the Emergency Medical Treatment and Active Labor Act and charity care to tough out any health emergencies.

The ranks of the uninsured and insured will roughly even out within 20 years. Hospitals and other providers will no longer be able to rely on a consistent revenue stream and will either have to slash services or shut down. Chronic morbidities such as diabetes, asthma and obesity will continue to rise as a result, driving up costs even higher.

That will put the focus on Medicare, one of the few almost universally popular entitlement programs--and the only one in recent years to have been relatively effective in keeping healthcare costs under control. As a result, "Medicare for all" will eventually triumph.

Roberts and Kennedy will keep that in mind, and opt for the devil they already know rather than the one social and political conservatives fear perhaps more than any other. - Ron (@FierceHealth)

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