Alex Henderson

The Political Zone

Obamacare/  Romneycare Has Been Upheld by the U.S. Supreme Court: Now, Where Do We Go From Here? 



By Alex Henderson
RealmNoir, June 28, 2012

It’s official: the United States Supreme Court has upheld, by a 5-4 majority, the constitutionality of the Patient Protection and Affordable Care Act (PPAACA), which President Barack Obama signed into law in 2010. And that includes the most controversial part of the legislation: the individual mandate. Many health insurance reform activists are celebrating the High Court’s decision, and rightly so. But there is still much work to be done when it comes to reforming the horribly broken health insurance system that plagues the United States.

When the Supreme Court began evaluating the constitutionality of so-called “Obamacare/Romneycare” back in March, it remained to be seen whether the justices would:( 1) strike down the “individual mandate” portion of the PPAACA but uphold other parts of the PPAACA, (2) strike down the PPAACA in its entirety, or (3) uphold the PPAACA in its entirety. The Supreme Court essentially went with #3, and surprisingly, Chief Justice John Roberts (a George W. Bush appointee) ruled in favor of “Obamacare/Romneycare” along with justices Ruth Bader Ginsburg, Stephen Breyer and Obama appointees Sonia Sotomayor and Elena Kagan. The fact that the four dissenters included Antonin Scalia, Clarence Thomas and  Samuel Alito is not surprising, but the fact that Justice Anthony Kennedy (a frequent swing vote on the Court) wanted to strike down the PPAACA in its entirety while Roberts helped to save “Obamacare/Romneycare” is a surprise. Many legal scholars were predicting that if “Obamacare/Romneycare” survived, the swing vote in its favor would be Kennedy—not Roberts.

So, “Obamacare/Romneycare” survives the scrutiny of the Supreme Court, and that includes the positive parts of the legislation. The PPAACA still states that health insurance companies will no longer be able to deny Americans coverage because of “pre-existing conditions” (which could be anything from diabetes to asthma to cancer to lupus) or engage in the ugly, vile practice of rescission (dropping customers when they suffer a major illness). Youths will still be able to stay on their parents’ plans before turning 26, and 80% of a health insurance company’s profits actually have to be spent on health care (as opposed to corporate pork). All of that is positive, but the fact is that the foxes are still guarding the henhouse—and those foxes have names like Blue Cross, United Healthcare, CIGNA HealthCare, Kaiser Permanente and Aetna. American health insurance companies are still an abomination, but “Obamacare/Romneycare” makes them somewhat less of an abomination.

Wendell Potter, a former CIGNA executive turned health insurance reform activist, has often said that “Obamacare/Romneycare” doesn’t go nearly as far as it should. And he is absolutely correct. Minus the public option that many health insurance reform activists wanted in 2009 and 2010, the PPAACA doesn’t have nearly enough teeth in it. Medical bankruptcies and sky-high premiums will continue to be a cruel fact of life for millions of Americans. Let’s not kid ourselves: the health insurance lobby played a major role in the shaping of the PPAACA, and the health insurance lobby could care less how many cancer patients die in the streets.

All that said, the PPAACA is a historic piece of legislation in that—flaws, weaknesses, shortcomings and all—it moves the U.S. a bit closer to universal health care. With the passing of the PPAACA in 2010, President Barack Obama accomplished something that a long list of presidents—from Teddy Roosevelt to Richard Nixon to Harry S. Truman to Bill Clinton—wanted to accomplish: he helped move the U.S. in the direction of universal health care. And politically, the fact that the Supreme Court has upheld “Obamacare/Romneycare” is a victory for the Obama Administration, although it certainly doesn’t guarantee that he will be reelected in November (incumbent presidents have a hard time getting reelected when a country is in economic peril—just ask Jimmy Carter and George H.W. Bush, Sr.). The Republican establishment, as expected, is cursing the Supreme Court’s decision, which is laughable in light of the fact that the PPAACA is a very Republican-influenced piece of legislation. Bob Dole, the Heritage Foundation and none other than Mitt Romney himself were, in the past, strong proponents of the individual mandate that Romney is now hypocritically railing against. And here’s another fact: the health insurance reform deal that President Richard Nixon worked out with Sen. Ted Kennedy back in 1974 (before it was derailed by the Watergate scandal) was, in some respects, more generous than the PPAACA. Republican Nixon and Democrat Kennedy actually worked out a bipartisan plan that was to the left of what we now called “Obamacare.” But facts don’t matter when one is dealing with a gang of rabid, unhinged far-right ideologues who make Nixon and Barry Goldwater look like flaming liberals.

So now that the PPAACA has been upheld by the Supreme Court, where do health insurance reform activists go from here? Ideally, they will need to work on making the PPAACA much stronger, aggressively push for public options and continue to educate voters about what all is at stake; none of that will be easy. And Americans will need to have a serious dialogue about the various universal health care models that have been successfully implemented in other developed countries (which range from the public/private system in France to the single-payer systems in Italy, Spain and the U.K.).     

All things considered, the fact that the Supreme Court has upheld the constitutionality of the Patient Protection and Affordable Care Act is a positive development. But there is still much work to be done when it comes to health insurance reform in the United States.

Alex Henderson is a veteran journalist whose work has appeared in The L.A. Weekly, AlterNet, Billboard, Spin, XBIZ, Creem, Skin Two, The Pasadena Weekly, JazzTimes and a long list of other well-known publications. He can be followed on Twitter @alexvhenderson. 

The United States Supreme Court, by a 5-4 majority, has upheld the constitutionality of so-called "Obamacare/Romneycare."