by OdlerRobert Jeanlouie

On June 28, the US Supreme Court ruled that the Affordable Care Act (ACA), so-called Obamacare, is constitutional in all its terms and will be upheld. More importantly, the highest court of the land ruled specifically on the individual mandate, the engine of the law, that obligates all Americans to buy health insurance by 2014. The Justices found that the mandate is not an interstate commerce edict, but a tax imposed by Congress on the people. Considering the right of Congress to taxation, the individual mandate was as such upheld.

This ruling feels like a large brick falling into a small pond. It makes waves. It raises questions. It conjures action. It throws into scrambling the 26 states of the Union that initiate the lawsuit that ended in front of the Court. It strengthens Obama’s profile in national politics. It rallies the Republican base. It shakes and transforms the healthcare industry as we know it. Most importantly, it upends the perception of the Court, as in independent branch of the government, rather than an instrument of partisan politics. The vote of John Roberts, the Chief Justice, was a jaw dropper, a judgment of Solomon.


What does it means for you? You will have to buy your own health insurance, if your boss or your job does not provide you with one. If you don’t, you will have to pay a penalty: $285 per family at the beginning, the penalty will increase progressively to $2,085 per family.

However, the price of individual insurance will decrease for two reasons: (1) Since everyone will be required to buy it, the prices, like for cell phones, will get lower, while the products will get better, (2) You will no longer be limited to buy health insurance solely in your state, there will be health insurance exchanges available on the Internet, where you can buy your insurance from a company located anywhere in the country, as far as Indiana or Idaho or Maine, because it is cheaper, there; its sounds like; isn’t it? Finally, if you are 26 or younger, you can free ride on your parents’ insurance, the same way you continue helping yourself at their fridge.

What does it mean for small business owners? It is problem there. If your business counts less than 50 employees, you don’t have to worry about buying insurance for your employees. But beyond that, you will have to take a hefty bill earmarked for healthcare. However, how many small business you know (dry cleaners, computer companies, travel agencies, restaurants, medical clinics, etc) have more than 50 employees? Few. Therefore, the impact is expected to be limited by the small percentage of tax ID numbers falling under the law, but also by improved pricing conditions in an enhanced market place competing for your business.

What does it mean for the Medicaid program? Originally, anyone who is too poor to buy heath insurance, i.e whose income is less than 133% poverty level, would have been eligible to join his state’s charity care program. A non compliant state would have been penalized by the federal government, and seen part of his federal monies retained by Washington. The Supreme Court ruling strikes this provision down, and gives to each state the right to opt out of the ACA. Therefore, this is not yet the end of the uninsureds in America.

What does it mean for practicing physicians? It is a mixed bag for doctors and hospitals. Since the ACA purports to enlarge the pool of health-insured Americans, it is likely that healthcare providers will be at least partially relieved from the problem of uninsured patients, i.e. they will no longer have to work for free; that is the good side. The bad side is that the same ACA is primarily dedicated to reduce the cost of healthcare by, among other means, decreasing or denying reimbursement to healhcare providers. Moreover, while more patients are brought into the pool, there is no additional money invested into their care. Therefore, physicians will likely continue to work more for less like it has been the case over the last decade. Things will get worse before they get better.

Is there room for improvement? Yes, the law should have a clause that eliminates the malpractive burden that cripples private practice. Why would a patient’s life be worth $250 paid to the physician for an emergency intervention, in the middle of the night, to save the patient’s life, and be worth 250 million dollars awarded by a jury when the physician fails to save that same life?

What does it mean for the Supreme Court? Since the 2000 Gore vs. Bush decision, Americans have been accustomed to perceive the Supreme Court as an activist organ at the service of the political parties and the extremists. Most judgments have been rendered along party line, and the toughest ones by a 5-4 decision.
The current court presided by conservative John Roberts, a Bush appointee whose nomination was opposed by then-Senator Barack Obama, has not shied away from this reputation. Its makeup was geared to strike the ACA down, at least to do away with the individual mandate.


John Roberts, a Person of the Year contender, reconciled his vision with those of the Founding Fathers. The Supreme Court exists solely to interpret the Constitution. The job of the Justices is not to legislate from the bench, not to enact a political agenda, but to practice restraint and guide the lawmakers on Capitol Hill. Laws should be sent back, not stricken down. John Roberts understood it. He understood that he would make a disservice to the average American if the healthcare battle of the yesteryears had to be fought all over again.

After 70 years of trying, the American government has finally set up a piece a legislation that would curb healthcare cost and improve its delivery. Like Clinton about Social Security, Roberts adopts the same attitude toward the ACA: “Don’t end it, mend it.”. Obama sees the ruling as a “victory for all Americans”; and invites every citizen to work at improving the law.

If 52% of Americans don’t like the law (this includes the author of this article), it is not because it is aberrant or unconstitutional, it is also because some think it does not go far enough. In countries where universal healthcare thrives, from Great Britain, to Japan, to Israel, to Sweden, it lies on the single payer mantra. The government taxes the people, uses the money to pay for the sick. Period. And if you have money to spare, go see a private practitioner. Don’t hold your breath, Romney, if elected, will not strike the ACA down, because Massachussets’ Romneycare is the genitor of Obamacare, and the individual mandate is the brainchild of the conservative think tank called Heritage Foundation.

Chief Justice Roberts read and knew all that. He decided to dissent from the dissenters, and shift the majority. In an acrobatic 59-page rendition of his opinion, he first stated that the individual mandate was not a tax; but when, a few pages later, he needed to join the rank of the upholders, he defined the requirement as a tax. That was an artistic worK of compromise, and a positive strike on the road for economic recovery. Understand what a mayhem that would be if we had to return to the ancient times, when insurance companies would not insure you because of a pre-existing condition…

Justice Roberts’ Court showed restraint, not activism; that is what the Founding Fathers wanted, that is what the doctors prescribed.

It is only a coincidence that Chief Justice John Roberts ended his opinion with these words: “It is so ordered”. Yes, doc.

(OdlerRobert Jeanlouie, Sunday, July 1, 2012)

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