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Chewing Over the Affordable Care Act (With a Side of Broccoli)


Ronald Bayer, PhD
Professor of Sociomedical Sciences

After three days of Supreme Court arguments on the Affordable Care Act, the Mailman School community buzzed with questions and opinions on the legislation, the legal challenges, and what the future could bring for the American healthcare system.

To explore these issues, close to 100 students, faculty, and other members of the community gathered on March 29 for a lunchtime discussion. Health Policy and Management chair Michael S. Sparer, PhD, JD, and Sociomedical Sciences Professor Ronald Bayer, PhD, got the conversation started with their take on the week’s action in the high court.

Dr. Sparer mapped the complex terrain of the case, laying out the byzantine and sometimes bizarre arguments for and against the law’s major provisions. On the individual mandate—the requirement that all Americans have health insurance or face a penalty—lawyers representing the two sides battled over issues like the authority of the federal government to regulate interstate commerce and whether there can be limits on this authority. The question of which market was being regulated came into play, Dr. Sparer noted, when Justice Anthony Kennedy—widely seen as the swing vote—challenged the government position, suggesting it was trying to “create commerce in order to regulate it.”

Dr. Sparer also referenced Justice Antonin Scalia’s hypothetical question on whether the government, in mandating health behavior, could require everyone to buy broccoli. References to buying broccoli, Dr. Sparer said, were a recurring theme among skeptics.

Another controversial issue is the law’s broad expansion of Medicaid and the threat that a state could lose all Medicaid funding if it did not implement the expansion. Dr. Sparer highlighted questions raised in Court about the coercive nature of this penalty.

Commenting on the tenor of the proceedings, Dr. Bayer said he was troubled that the stronger moral argument was being made by those opposed to the law. While they evoked ideas like liberty and freedom, the government’s case seemed narrow, technical, and dull. “I was troubled by the fact that my heart was with the boring guy,” he said. This sentiment was echoed by Population and Family Health Chair John Santelli, MD, MPH, who wondered if the question of state’s rights was overshadowing the more weighty issue of healthcare as a fundamental human right.

The Affordable Care Act and the case against it should be seen in the context of the trend toward reassessing federal powers, noted Dr. Sparer. This trajectory is highlighted by the historical irony that the individual mandate was first put forth by the conservative Heritage Foundation as an alternative to the Clinton healthcare reform plan in the early 1990s. Those looking for healthcare driven by a sense of justice, noted Dr. Bayer, are now hanging their hopes on a plan that they once scorned when a national single-payer plan was on the table. Adding to this odd turn of events, even Supreme Court arguments against the new law have pointed to the legality of a Medicare-for-all approach.

For many in the discussion, the bigger question was “what’s next?” Alexandra Feathers, a dual-degree Master’s student in Epidemiology at the Mailman School and Columbia’s School of International and Public Affairs, asked if the oral arguments pointed to an outcome one way or the other.

For Dr. Bayer, “it didn’t look good for those who want to see the law stand,” however, with written briefs and lower court decisions also playing an important role, it remains unclear what will happen between now and June when the Court makes a decision. For Dr. Sparer, “it’s plausible that if the individual mandate falls, the whole thing falls, which is pretty scary.”

In this scenario, Dr. Sparer said, it will be up to Congress to pick up the pieces and see what, if any, provisions can have a second life as new legislation. Rules already in place, such as the one requiring insurers to cover children on their parents’ plans until age 26, might become a separate law. Alternatively, employers and insurers could decide on their own to continue the benefit. But those rules that haven’t yet gone into effect, such as the hugely popular interdiction against denying coverage to adults with preexisting conditions, said Dr. Sparer, would be unlikely to survive.

While a decision isn’t expected until June, there are already some who question whether the individual mandate was a political mistake. Dr. Sparer cited, for example, an article by Princeton sociologist Paul Starr in The New Republic. Dr. Sparer disagrees, saying the mandate was both good policy and sound political strategy. “Without the individual mandate, the insurance reforms fail, and if the insurance reforms fail, the effort to provide insurance coverage to the uninsured takes a major blow.”

March 20, 2012