Article   |   Volume 159, Issue 6

Of Stars and Proper Alignment: Scanning the Heavens for the Future of Health care Reform

By
Arnold J. Rosoff

June 2011










On March 23, 2010, the United States took a giant step toward achieving universal health care, an elusive goal it has pursued for almost a century. The legislative fight was bitter and divisive, pitting Republicans against Democrats. It revealed, as effectively as any issue in recent years has, how difficult it is to achieve bipartisan cooperation when tackling America’s biggest problems. Nonetheless, the product of that contest, the Patient Protection and Affordable Care Act—referred to herein as the Affordable Care Act, the Act, or, as its detractors call it, “Obamacare”—fed the hopes of many Americans that we could finally come to recognize an adequate level of health care as a right of all our citizens and thus shake the dubious distinction the United States has long held of being the only major, industrialized nation on earth that has not committed to this noble goal.

But as this is written, in March 2011, the Affordable Care Act’s future, and the future of health care reform more broadly, is far from certain. Two federal district courts have ruled that what many regard as the Act’s keystone provision, the individual mandate to purchase health insurance, The first court concluded that the offending provision can be excised from the law and the remainder left intact; the second held that the provision is so integral to the overall legislative scheme that the entire law must fail. Since three other district courts have already rejected challenges to the Act’s constitutionality, it is virtually certain that the Supreme Court will ultimately review the Act. If the case takes the traditional route through the courts of appeals, then it should reach the Supreme Court around the time of the national elections in November 2012. On a parallel track, the newly installed 112th Congress has begun to consider a repeal of the law. Despite the formidable obstacles that a repeal attempt would have to overcome—unlikely passage in the Senate and a likely presidential veto—the winds of opposition are blowing so strongly that a repeal is at least within the realm of possibility. Setting aside these challenges and assuming the Affordable Care Act survives, it is an open question whether the Act can deliver on its very ambitious promise to secure basic health care coverage for almost our entire population without bankrupting the nation’s health care financing system or reducing the quality of care those who are now covered enjoy. Clearly the road to universal health care is a difficult one for the United States. Like previous trips, this one may again prove to be a road to nowhere. Of Stars and Proper Alignment: Scanning the Heavens for the Future of Health care Reform - PennLawReview.com