But uncertainty over the future of the massive Patient Protection and Affordable Care Act has grown after the U.S. Supreme Court's oral arguments regarding the law in late March, with many observers concluding that the direction of the justices' questioning indicated deep doubts about the provision requiring individuals to buy health insurance and whether the rest of the law could stand without it (April 2, p. 6)
Dr. Georges Benjamin, executive director of the American Public Health Association, said responses from his members to the legal jousting at the Supreme Court echo “the usual queasiness you get in a tight basketball game.”
Organizations representing physicians and hospitals have warned their members not to leap to conclusions. For instance, the American Hospital Association pointed out that some observers assumed the law was in trouble when it faced aggressive questioning from a panel of judges on the U.S. Court of Appeals for the District of Columbia Circuit. But the panel upheld the entire law.
In talking to officials at member hospitals, “We made it clear that you can't with any reliability determine what the court is going to do based on the oral argument,” said Melinda Hatton, AHA senior vice president and general counsel.
The law has already and will increasingly affect nearly every type of healthcare provider, and providers have raised concerns that the court could strike down the coverage expansions and leave the law's cost-saving provisions. The AHA estimated the law would reduce hospital payments to some federal healthcare programs by $155 billion over its first 10 years of implementation. Moody's Investors Service, meanwhile, concluded in a report last week that a repeal of the law would disproportionately hurt the credit ratings of for-profit hospitals.
But the myriad legal possibilities have made it impossible to plan for an adverse ruling, many provider advocates said.
“The options out there range from addressing anything the court didn't find constitutional to saying, ‘We tried it this way and now let's go with single-payer,' ” Benjamin said. “If we're going to have a fight, let's have a real fight.”
The American Medical Group Association over the next three weeks will review various ways the Supreme Court could decide on the case and what large healthcare organizations must do to prepare for each, said Donald Fisher, the association's president and CEO.
Thomas Miller, a health economist at the conservative American Enterprise Institute, said he expects House Republicans will spend the next three months developing some form of alternative healthcare legislative package in case the court strikes down the entire law. “They need to have something post-Supreme Court decision and you probably can't do it the day before,” Miller said.
Any legislative or regulatory response is further complicated by the looming general election, which politicians in both major parties have described as a referendum on federal healthcare policy. (See related editorial, p. 21)
Obama, in an April 2 news conference, characterized a possible decision against the law as “unprecedented” and urged the court to defer to “a strong majority of a democratically elected Congress.”
A day later, U.S. Circuit Judge Jerry Smith—a member of a panel of the 5th U.S. Circuit Court of Appeals hearing a separate challenge to the healthcare law—ordered a written explanation of the president's remarks from Attorney General Eric Holder, who had appeared with Sebelius at the Chicago fraud summit and was asked about the matter there.
“There is a piece of legislation—a very important piece of legislation—before the court,” Holder said. Obama “talked about the way in which the courts have typically—Supreme Courts—have typically looked at legislation, so I don't think he broke any new ground in the comments he made.”
Legal observers disagree whether the court can be influenced by public lobbying, even by the president, but most healthcare advocates believe it's a “waste of time” for providers to attempt to influence the outcome from the outside, Hatton said.