- The Washington Times - Thursday, June 14, 2012

No matter how the Supreme Court rules on President Obama’s health care law this month, major insurers have promised they’ll still cover children up to age 26 and pay for preventative services without charging co-pays — but there’s no telling the fate of hundreds of other provisions in the imperiled overhaul.

It all hinges on which opinion prevails among the nine justices, who have spent months deliberating over challenges to the law’s individual mandate to buy coverage and its massive Medicaid expansion.

The court could choose the straightest path forward by upholding the entire law, preserving months of preparation by health care stakeholders across the country.

They could take the opposite tack by wiping the whole law off the books, which could lead to all sorts of complications but hand Congress a clean slate.

Or they could land somewhere in between.

That could mean tossing out just the individual mandate or the mandate plus “community rating” and “guaranteed issue,” two related insurance rules that require insurers to cover everyone regardless of their age or health. Or the justices could throw out entire sections of the law while leaving others intact.

Amid all the swirling questions, one thing is sure: the court faces a complicated set of options that could leave the Obama administration with a lot of salvage work to do when the court hands down its decision later this month.

“If they just strike the individual mandate, it’s one of 487 sections in the statute, so if they just strike that, all the other requirements will stay in place,” said Tim Jost, a law professor at Washington and Lee University. “If they strike the community rating and guaranteed issue, that’s a bigger problem … if they strike the entire bill, it’s just chaos.”

There’s widespread agreement that without the mandate, insurance premiums could dramatically spike, since insurers would have to cover the sickest Americans while healthier people would likely forgo coverage.

But even if the court scraps the new coverage rules, along with the mandate, weighty questions remain about how the law will shake out without its centerpiece.

There would be fewer healthy Americans joining insurance pools, which crafters of the law had said would help to lower health care costs. Enrollment in state-based insurance exchanges would drop and there could be a backlash from drug makers, medical device manufacturers and insurers, who agreed to new taxes and regulations since they were assured everyone would be required to purchase coverage.

And lawmakers who have tried for years to solve the problem of making coverage accessible to Americans with preexisting conditions would be back at square one.

No one can say what Mr. Obama’s signature legislative accomplishment will look like a few weeks from now. But legal experts say two outcomes are most likely: The court will either uphold the entire law or strike down both the mandate and the related insurance rules.

“I think there’s about a 40-percent chance the whole law is going to be upheld, a 40-percent chance you lose the mandate, guaranteed issue and community rating and probably a 20-percent chance that something else happens,” said Ian Millhiser, a policy analyst for the liberal Center for American Progress.

If the justices choose “something else,” things will get especially complicated.

“The something else could be all kinds of things, many of which are utter bedlam,” Mr. Millhiser said.

On the list of possibilities is the unlikely prospect that the court will postpone a decision on the law for several years. During the three days of hearings in March, the justices heard a court-appointed attorney argue that a 19th-century tax law would make it premature to decide the case.

But it added to the palette of options before the justices, who also conducted separate hearings on the individual mandate, the Medicaid expansion and whether the rest of the law can stand without the mandate.

Given the complexity of the case, the court is expected to release lengthy majority and dissenting opinions. They could release separate opinions on each of the four issues they considered, or they could bundle the decisions into one.

And experts say it’s possible that every single one of the justices could release their own dissenting or concurring opinion.

“We could conceivably have nine different opinions,” Mr. Jost said.

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