Thinking The Unthinkable: What If The Whole Affordable Care Act Goes Down?
After this week's oral arguments at the Supreme Court, lawmakers and health policy experts are starting to ponder what had — until recently — been unthinkable to many: What if the court strikes down the entire Affordable Care Act?
Heading into the week, most supporters of the law had assumed that at worst, the court might find unconstitutional the requirement that most Americans either have health insurance or pay a penalty. And it might also invalidate a few key insurance provisions that are immediately tied to that, such as requiring insurance companies to sell to people with pre-existing health conditions.
But listen to the tenor of the arguments. (And here is the requisite warning that you can never tell what the court might or might not do from the questions justices ask.) There seemed to be enough skepticism from the conservative justices that people are now talking about a very real possibility that the court could throw out the entire law, all 2,700 pages, later this summer.
So what would that mean in practice? Obviously none of the things that haven't taken effect yet would happen. But what about the parts of the law that are already in operation?
Health lawyers mostly aren't sure, but their opinions generally range from "God only knows" to "bedlam" to "chaos."
Here are just a few of the questions a complete declaration of unconstitutionality might raise:
Obviously, not everyone thinks it would be a bad thing to have the law go away.
One example, from Michael Cannon of the libertarian Cato Institute: If insurers didn't have to cover pre-existing conditions for children, he says, "maybe some insurers would return to states" where they stopped offering coverage.
And there could be other benefits as well, he says. If the entire law were to go away, "we would have just dodged this whole nasty debate over religious freedom and abortion."