Washington — After keeping America waiting for months, the Supreme Court is set to issue an opinion that will define Barack Obama’s presidency and touch the lives of nearly every American.
The high court Monday held back its decision on a challenge to the Affordable Care Act, and it is now expected to issue its ruling Thursday, the last day of the session.
But few in Washington — or anywhere — are ready to predict what that will be.
“It’s impossible to predict,” said Wendy E. Parmet, associate dean of Boston’s Northeastern University School of Law.
Jeremy Paul, dean of the University of Connecticut Law School, also said speculating on the court’s decision at this point is fruitless.
“It’s always hard to read the tea leaves,” he said.
The challenge to the ACA — by 26 states and the conservative National Federation of Independent Businesses — centers on a mandate that takes effect in 2014 that would force those without health insurance to buy it.
The Supreme Court could strike down the mandate but keep the rest of the law intact. But that would wreak havoc with insurers, who are counting on the new premium dollars that would be generated by the mandate to pay for the act’s other reforms.
The health insurance industry says the end of the mandate would force it to raise premiums and leave unprofitable markets, giving consumers poorer coverage and fewer choices.
But that may never happen, Parmet said.
Republicans, who now say they don’t support anything short of a full repeal of the law, may be more willing to amend it after November’s elections to take insurers off the hook.
“After the election, there would be pressure on Republicans by insurance companies screaming they will be bankrupt,” Parmet said.
Drop mandate and some reforms?
The second thing the Supreme Court could do is eliminate both the mandate and some costly — but popular — reforms.
Among those is one that allows parents to keep children on their policies until they are 26 years old. There’s a state law in Connecticut that allows parents to keep adult children on their health insurance policies, but it does not apply to companies that self-insure — and most large companies do.
Other costly reforms eliminate caps on annual or lifetime benefits, which hurts those with chronic conditions, and bars insurers from rejecting people with pre-existing health conditions.
Sen. Richard Blumenthal, D-Conn., a former Supreme Court clerk, said he would prefer that the high court uphold the ACA. But he said the law could still work if some of its pieces are missing.
“If the mandate is struck down, we could work around that and adjust it,” Blumenthal said. “There’s nothing sacrosanct about the entirety of the law.
Reject entire law?
The Supreme Court may also decide to toss out the entire health care law. That would make it difficult for Connecticut and other states to reduce the numbers of uninsured residents. That’s because billions of dollars from the federal government that states could use to expand Medicaid — the government-run health program for the poor — would disappear.
Parmet, an expert in public health policy, said the Supreme Court has never before overturned a law of this size and reach.
And she noted that much of the law has already been implemented, including an increase in funding to Indian health services and community clinics and a shrinking of the so-called “doughnut hole,” or coverage gap, in Medicare’s prescription drug program.
“What are we going to do? Are seniors going to be required to pay back the government?” Parmet said.
Uphold the entire law, or … ?
The Supreme Court could also decide to keep the Affordable Care Act intact.
That’s the only decision that wouldn’t be “messy,” Parmet said, adding that in her view, the ACA is constitutional.
But the current Supreme Court is split along ideological lines, with four conservatives, four liberals and one “swing” vote, Justice Anthony Kennedy.
“Given the way the court has been going, I wouldn’t be surprised at anything,” Parmet said.
Paul, of the UConn Law School, said he thinks the Supreme Court should uphold the law.
“The challenge (to the law) is, ‘Does the mandate exceed the federal government’s authority under the Commerce Clause (of the Constitution)?’ ” Paul said. “No it doesn’t. If you purchase insurance, you operate in a market the federal government can regulate.”
The Supreme Court could do something else: nothing at all.
Although the nation expects a decision Thursday, there have been times, although few, that the court puts off a ruling.
It did so in the landmark Brown v. Board of Education case, which outlawed segregated schools. In that instance, the Supreme Court put off a decision until its next session so it could hear additional oral arguments.
In Washington, however, politicians are girding for a decision on Thursday.
House Speaker John Boehner, R-Ohio, has warned fellow Republicans against “spiking of the ball,” or public celebrations, if the Supreme Court strikes down the ACA.
Blumenthal has asked the Supreme Court to put aside its ban on cameras and allow its decision on the ACA to be televised.
“I believe Americans should be allowed to witness firsthand a historic moment for our Constitution, a decision about an industry that represents one-fifth of the U.S. economy,” Blumenthal said in a letter to Chief Justice John Roberts last week.
Another reason Blumenthal may want the decision televised is that if the health reform law is overturned, dissenting justices could read their opinions to the American public.