Institute Forum

Summary: Fate of Health Law Awaits Supreme Court, Presidential Race April 10, 2012

Fate of Health Law Awaits Supreme Court, Presidential Race

As the fate of the two-year-old Patient Protection and Affordable Care Act rests on an upcoming Supreme Court decision, a Rockefeller Institute forum considered the efforts that led to the health reform law’s passage, the potential outcome of court deliberations, and the impacts of the court’s decision for New York and the nation.

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Institute Fellow Richard Kirsch, author of the book Fighting For Our Health, launched the discussion by sharing his experience leading a coalition of advocacy groups that lobbied for passage of the law from 2008-2010. The coalition, Health Care for America Now, succeeded for multiple reasons, Kirsch said, including: bringing together large progressive groups able to mobilize significant numbers of grassroots activists; motivating Americans around the country to share personal stories with legislators; defining desired policy principles specific enough that legislation could be drafted from them; and tapping into the public’s anger over issues like denial of insurance coverage.

“In so much of political change, anger is the trampoline and hope is the sky above, and you need to have that dynamic,” Kirsch said.

Many Americans disapprove of the law now, Kirsch said, because they have yet to see tangible benefits from it. Important provisions, including those that ensure people can obtain affordable health insurance when they are unemployed, don’t go into effect until 2014. Kirsch expects the Supreme Court to keep those provisions intact, even if justices overturn the so-called “individual mandate” — the law’s controversial requirement that every American carry insurance coverage. He’s more worried, he said, about a reversal of the law should a Republican win the presidential election in November.

“The court is likely to keep most of the legislation intact, even without the mandate,” Kirsch said. “But whether that will really last will depend on who’s elected president.”

Attorney Henry M. Greenberg of Greenberg Traurig LLP highlighted possible decisions the Supreme Court could make as it considers the constitutionality of the law, and in particular the individual mandate. The Supreme Court heard oral arguments on the issue for three days in March, devoting more time to the case than any since the Voting Rights Act of 1965. Greenberg called the current deliberations “an extraordinary moment in constitutional history.”

“What does strike me as very unusual — maybe unprecedented in the court’s history — is that it is poised to hand down a decision on this unbelievably volatile political issue in the heat of a presidential campaign, in late June,” Greenberg said.

Greenberg outlined three main issues before the court:

James R. Knickman, president of the New York State Health Foundation, discussed the impact of those potential decisions on New York State.

If the law is substantially overturned, Knickman said, New York will lose expected funding for health programs. Yet the court decision is likely to affect New York less than other states because government leaders and health industry officials here are already collaborating to improve medical data and contain costs. Knickman predicted the state will have bipartisan agreement on a health insurance exchange that offers affordable plans to all New Yorkers.

“I feel good that New York is a bit more functional than D.C.,” Knickman said.

Knickman said he was more concerned about an increasingly polarized political climate in Washington that could make it difficult for federal officials to take needed action to contain rising health care costs. Leaders must attempt to rein in the costs of government health programs like Medicaid and consider the feasibility of expensive new drugs and medical technology, he said.

“We have to have a social way of making decisions about which of these things we want to invest in as a society — what do we want to pay for and not pay for? — and there has to be some some semblance of cooperation to make those decisions,” Knickman said. “These are big decisions we have to make: What is core — what should every American have a right to? And what is boutique-y, and we’re going to have to let the insurance system not cover it?”

Nationally, Kirsch suggested more conflict over health reform could ensue if a Republican is elected president. He predicted a “huge mobilization” of both supporters and opponents of the Affordable Care Act should that be the outcome of November's election.

From a legal standpoint, Greenberg told the forum to “stay tuned.”

“We all need to fasten our seatbelts, because if nothing else we are in for the political, judicial, constitutional rides of our lifetime,” he said.


The Nelson A. Rockefeller Institute of Government, the public policy research arm of the State University of New York, conducts fiscal and programmatic research on American state and local governments. It works closely with federal, state, and local government agencies nationally and in New York, and draws on the State University’s rich intellectual resources and on networks of public policy academic experts throughout the country.