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SCOTUS Tenterhooks—What will the decision mean for health reform?

By Dr. Kohar Jones

ten·ter·hook (tntr-hk)


A hooked nail for securing cloth on a tenter.


on tenterhooks

In a state of uneasiness, suspense, or anxiety.



I wait on tenterhooks as the Supreme Court is deliberating their decision on the constitutionality of the individual mandate, and whether striking down the mandate strikes down health reform. 

The Affordable Care Act was the first law passed in the United States that dared to legislate that all Americans have health insurance.  This was, as Vice President Joe Biden infamously said, “A big f***ing deal.” Legislation supporting health for all had not managed to pass Congress since the time Theodore Roosevelt had first put forward universal health care as a plank on his political platform in 1912 (he wasn’t elected).  It was not passed in the 1932 New Deal of Franklin D. Roosevelt.  It was not passed during the 1945 Fair Deal of Harry Truman, even during the push to social equality after World War 2 (when Britain’s National Health Service was established).  Lyndon B. Johnson did not even try to pass universal healthcare as part of the Great Society legislation in 1964, instead opting to declare war on cancer and heart disease, and establish Medicare to cover some—but not all—of senior’s expenses, thereby avoiding accusations of entering the dangerous world of socialized medicine.  William J Clinton’s attempts at health care reform likewise bogged down in Congress.

And then, in 2010, Congress passed the Affordable Care Act, and President Barack Obama signed it into law.  Suddenly, for the first time, there was a law—a law!—saying that all Americans should have health insurance.

The Affordable Care Act did not dramatically reform our health care delivery system in the states.  Instead, it kept the same basic structure of employer based health insurance as the primary payer, with government programs covering the elderly (Medicare, federally paid) and an expanded base of the poor (Medicaid, paid by states).  Federal subsidies would encourage individuals and small business owners to buy insurance on the private market if they didn’t have employer-based insurance and didn’t qualify for government insurance.

In our current system, health care for all will work if everyone pays into the system.  If only the sick buy insurance, then all their premiums added up can’t pay for the sum of their health care costs.  Keeping sick people alive is too expensive.  Making EVERYBODY buy health insurance means that the healthy people who don’t need to visit the doctor all the time will help to pay for the medical costs of the sick. Take away the requirement for everyone to pay into the system, and for insurance companies to insure everyone, and you will end up with a system either where only the healthy are insured (what we had before the ACA for the self-insured), or where the insurance companies go broke and no one has insurance anymore if only the sick buy in.

Is it constitutional to tell people they must buy health insurance?  I don’t know.  The Supreme Court’s expertise will guide me.

Can one piece of a law be taken away and have the rest of the law stand?  Again, we’ll find out.

But here’s the deal.  The ACA has already worked.  Whether or not the individual mandate is upheld.  Whether or not the Affordable Care Act remains standing.  It has already changed health care in America.

The Affordable Care Act never restructured our health care system.  It simply shifted incentives within our current system.  The system has already shifted in anticipation of new payment incentives starting in 2014. The effect of a provision saying: no payments for a second hospitalization for the same condition within 30 days? The hospitals with which I work have been scrambling to figure out how to improve handoffs from inpatient to outpatient care, to keep people well after they’ve been hospitalized for the first time.  One hospital hired case managers last year to track patients with congestive heart failure, and now I get a call as my patient leaves the hospital, along with a list of new medications and treatment.  I know what I need to do to keep my patients well, and when my patients come to see me, they stay out of the hospital, and this saves the system money.  Another hospital is also figuring out how to connect the patients who are leaving the hospital with primary care providers, and make sure they have access to at least a month’s worth of meds to keep them out of the hospital while working with their primary care physicians to establish the ongoing care they need to stay well.  These changes are because of the Affordable Care Act, and whatever the Supreme Court decides this week or next, these changes will stay.


Affordable Care Organizations.  Patient Centered Medical Homes.  These care models that were incentivized by the ACA will continue to exist, providing more people with coordinated care on a sound primary care base.  New models will continue to be explored.  States will legislate the changes that the ACA has tried to promote—innovations to improve efficient and effective health care delivery.

My personal prediction: 

If the law stands, we’ll still need a health care system overhaul in a few generations.  The incremental changes in the system from shifts in incentives will slow, but not stop, the bleeding cost of health care in our society today.  Our system will still demand too many dollars for too little health, but we’ll limp along for a while before change comes.

If the law is struck down, we’ll see the overhaul of our health care system in another generation or so.  What we have now is not sustainable. The hemorrhaging cost of health care will threaten to kill our economy and undermine our national defense, stealing money from schools and leaving our roads in ruin. At the last minute, major change will occur.

If SCOTUS strikes down the individual mandate, and strikes down the ACA, my prediction is socialized medicine in a generation.  Single payer system, here we come!

Our nation’s future health swings in the balance.

On tenterhooks.

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