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Waiting on the Supremes

Waiting on the Supremes

November 21, 2011 0 Comments

So now we know. The United States Supreme Court will, in fact, review the constitutionality of the Affordable Care Act. Most analysts had expected the Court to agree to hear the largest of the consolidated challenges to the law. This Court, especially in recent years, has not shied away from big public debates and there are plenty of issues to debate when it comes to healthcare reform.

We also think we know that the Court will announce its decision sometime in June of next year, before completing its work for the 2011-2012 term (they are not required to make a decision before the term ends, by the way). And many have pointed out that by next June we’ll be – like it or not – in the teeth of “The Election Season.”

So what happens to the healthcare debate between now and then? And will the Court’s decision be as significant to the election debate and outcome as some have suggested?

For the moment, the implementation of the Affordable Care Act continues unabated. States are discussing whether and how to create the health insurance exchanges that consumers will access to help them shop for health insurance. Regulations on how to create new models of care – called Accountable Care Organizations – roll out. Debate continues regarding whether Medical Loss Ratio requirements (the provision that says insurance companies must spend between 80% and 85% of premium dollars on medical costs) will ultimately benefit or harm consumers, especially those who are buying insurance on their own.

The public debate has not changed much over the past year. Republicans generally hate “Obamacare” and what they view as its job-killing regulatory requirements; Democrats favor universal coverage. Both sides want “the very best healthcare system in the world.” None of that is likely to change between and now and June 2012 as we wait for a decision from the Court.

But the lawyers arguing before the Justices will not debate reform on its merits. The discussion will be about how to get to reform. Is the individual mandate constitutional? If it is not, how much of the law can continue to stand? It is even possible that the Court may not get to those issues. They’ll spend the first 90 minutes of oral argument addressing whether the case can even be decided under the “Anti-Injunction Act.” It may be that we’ll need to wait until 2014 before hearing from the Court on health reform.

It is wrong, therefore, to view the possible June announcement of the Court’s decision as a plebiscite on “Obamacare.” Rarely does the Court provide simple yes or no answers. Rather, it is likely that the Court will deliver a mixed decision, one from which both sides can claim victory. What we should be watching for, however, is what both sides are doing in the weeks and months leading up to a Court decision. Which side is best prepared to define the outcome as an endorsement for their side and a public rebuke for the other view? The meaning of the Court’s decision for our politics and for the election may be determined not so much by lawyers but by communicators. I second that emotion.

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