“SCOTUS”: Will They or Won’t They?

May/June 2012, Vol 5, No 3 - Editorial
David B. Nash, MD, MBA

For the political junkies among us, the acronym SCOTUS (otherwise known as the Supreme Court of the United States) has practically become a household word. By now, oceans of ink have been devoted to media coverage of the Affordable Care Act (ACA), the 3 days of unprecedented legal hearings and speculation about the potential outcome to be announced sometime in June. My colleagues in health policy circles have been making friendly wagers, not just about what the ultimate decision will be, but how the actual vote count will fall. Democrats and Republicans have flooded the airways, and the expert “talking heads” have impressed us with their punditry. By March 29, 2012, major national newspapers, such as the Wall Street Journal and the New York Times had already lined up the faithful on their respective editorial pages.

The tenor and tone of the exchange between the Justices and the attorneys arguing for and against the legislation were eye opening. It seemed as if the justices were asking the same questions as everyday people, “Do you really want us to read all 2700 pages?” and, “Are we doing a wrecking project or a salvage project?” Some political commentators framed the arguments in terms of social class, maligning the “punditocracy,” and calling the legislation itself a “masterpiece of mandarin abstraction.”1

I became more than a casual observer once I was invited to serve as a panelist on a local national public radio (NPR) program devoted to the topic. In a few paragraphs, I would like to quickly reframe some of the issues from this past spring, reflect on my own personal experience in the eye of the storm, and attempt to answer the rhetorical question, “Will they or won’t they?”

As best as I can tell, the Supreme Court is going to address 4 questions.2 First, the Court will determine whether the Tax Anti-Injunction Act (AIA), an archaic law from the late 1800s, precludes a review of the ACA until 2014, when any financial penalties would be assessed on individuals who do not purchase health insurance. Some experts contend that this penalty would, in effect, be a tax and therefore fall under the AIA. The AIA provides that the legality of a tax cannot be challenged until the tax has actually been assessed. Because no penalty (tax) will be assessed until 2014, the whole conversation is premature.

The second question that the Court will review remains the “hot button” issue—whether the federal government can compel citizens to purchase health insurance (otherwise known as the “individual mandate”). The government attorneys argued strenuously that the federal government has this authority under the Constitution’s Commerce Clause; previously, the Supreme Court has interpreted the section as providing Congress with wide latitude in this arena. The challengers argued that the mandate to purchase a product from a private entity is unprecedented and an intrusion on individual liberty.

If the Court rules the mandate unconstitutional, the third question they must consider is whether the mandate is “severable” from the rest of the law. Opponents of the ACA argue that the entire law must be overturned if the Court invalidates any part of it, and that the mandate is inextricably entangled with the other elements. On the other hand, the government argues that only 2 other portions of the law would fall if the mandate were struck down. These other conditions are the requirements that ensure coverage for people with preexisting conditions (the “guaranteed issue”), while not charging them higher premiums (the “community rate”).

The fourth and final question is regarding the constitutionality of the ACA’s Medicaid expansion, and whether states must comply with it to remain eligible to receive any federal Medicaid funds.

We all need to take a collective step backward and reexamine the core issues that the bill is attempting to address. The easiest way to frame this argument is the recognition that the ACA is really like 2 laws in 1. One aspect deals with insurance reform; in my view, the questions to be considered by the Court fall into this category. The other aspect of the law deals with delivery reform.

The healthcare industry has been working diligently on healthcare delivery reform for more than 2 years. Our Jefferson School of Population Health has been educating leaders to be active participants in the conversation regarding delivery reform. We embrace the now-famous Triple Aim, which was articulated by Donald M. Berwick, MD, several years ago.3 We recognize that we must improve the health of the population, enhance the experience of care, and decrease cost by reducing waste.

We support payment reform that accelerates the move from “volume to value.” We certainly support integration via bundled payment and coordination of chronic care, because these are the critical underpinnings of the population health model. In my columns and in my speaking engagements around the country, I have attempted to summarize the entire delivery reform aspect of the bill in 4 simple words: “no outcome, no income.”4

In my view, the 4 questions being considered by the Court essentially ignore these central issues. They also ignore the fact that stakeholders within the healthcare system have made substantive progress toward these critically important delivery system goals in the past 2 years.

On the third and final day of the hearings, I was privileged to appear on Radio Times with Marty Moss-Coane, a popular radio program produced by WHYY, the Philadelphia public broadcasting station. I thought I had prepared well for this important opportunity to help clarify what I perceived were some of the missing issues in the public debate about the ACA.

Of course, I sadly recognize that these complex concepts cannot be distilled into a 15-second sound bite—especially on the radio. When the program was open to questions from listeners, I was truly depressed by the questions, because they focused on a narrow interpretation of the individual mandate.

A December 2011 tracking poll from the Kaiser Family Foundation found that support for the mandate varied from 17% to 61%, depending on which messages or information opponents or supporters of the mandate hear on the issue.5 One thing all of the experts agree on, regardless of where their opinions lie, is that the administration has done a poor job of communicating how the various components of the ACA would play out once it is fully implemented.

“Perhaps, surprisingly, the most effective information on changing people’s minds is the basic reminder that, ‘under the reform law, most Americans would still get coverage through their employers and so would automatically satisfy the requirement without having to buy any new insurance.’ After hearing that message, favorable reviews of the mandate went up 28 percentage points to 61%.”5

Although the 1 hour flew by quickly, I was happy to have expert colleagues sitting on either side of me in the studio. I thought we handled the live phone-in portion of the program with relaxed camaraderie and ease. Later that same day, most of my e-mails and text messages were positive, although a few people took issue with my position that the discussion should center on delivery reform and not these narrow constitutional issues.

Where does all of this public attention on the healthcare system over the past several months leave us? That is the question of the hour for our industry. Does the notion of the Triple Aim mean anything to our citizenry? Is the public so afraid of “government intervention” in their lives that they lose sight of the fact that the bill itself represents a colossal compromise, wherein most stakeholders put future economic rewards aside so that a historic bill could be fashioned and approved? Walking back from the local NPR studio to my office, I asked myself these same questions and found no ready answers.

Will they or won’t they? There’s no future in predicting the future, but I will add my voice to the cacophony attempting to answer this important health policy question. I tend to believe that the Court will strike down the individual mandate and uphold its severability. In such a case, the insurance industry will respond with a flurry of activity. There is no doubt that premiums will continue their inexorable rise.

But there is some good news—those much-needed delivery system reforms will continue to transform. Cooler heads will prevail, and we will make progress in our unique American journey to improve the health of the population and reduce waste in our system. Somehow we must find a way to achieve value for the $8000 per person that we spend annually. Of course, I am interested to hear your views, and you can reach me at This email address is being protected from spambots. You need JavaScript enabled to view it..

References
1. Henninger D. We’re not France yet. Wall Street Journal. May 29, 2012:A17.
2. Curfman GD, Abel BS, Landers RM. Supreme Court review of the health care reform law. N Engl J Med. 2012;366:977-979.
3. Berwick DM, Nolan TW, Whittington J. The triple aim: care, health and cost. Health Aff (Millwood). 2008;27:759-769.
4. Jacoby R, Berman B, Nash DB. No outcome, no income CMS’s “meaningful use” initiative. Health Policy Newsl. 2011;24:1-2. http://jdc.jefferson.edu/hpn/vol24/iss1/12/. Accessed May 31, 2012.
5. The Henry J. Kaiser Family Foundation. Kaiser Public Opinion. March 2012. www.kff.org/healthreform/upload/8296.pdf. Accessed May 31, 2012.

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