View From Washington

By Brent Ewig, MHS
Director of Public Policy & Government Affairs, AMCHP

This issue goes to press just as the Supreme Court begins deliberations on the constitutionality of the Affordable Care Act. As for insight into how the court will decide, I am once again resorting to quoting the great Yogi Berra who said, "Predictions are hard – especially when they are about the future." So I will avoid the guessing game about how they will rule on the two central issues – the individual mandate and the Medicaid expansion – and, like you, join the waiting game for the expected June decision.

What we can share is some conventional wisdom on the various scenarios in play and what they might mean for MCH populations.

Under the first scenario, the court could find that the individual mandate exceeded Congress’s constitutional authority and throw out the whole law. Under this development, the expected coverage expansion for 32 million Americans evaporates, as well as other provisions including the Public Health and Prevention Fund, the Maternal, Infant, and Early Childhood Home Visiting Program, and the range of insurance reforms, such as the ban on preexisting condition exclusions and limits on annual and lifetime limits.

Also under this scenario, state Title V MCH programs would find themselves continuing to operate in the environment much as it is now, marked by fragmented systems struggling to serve tens of millions of uninsured women and children, with inadequate focus on supporting integrated systems and under-investment in prevention and primary care.

In the second scenario, the court could conceivably throw out one of the central tenets of the law (either the individual mandate or the Medicaid expansion) but find that the law is severable, meaning that the other portions of the law would be preserved. Under such a scenario, it is conceivable that the individual mandate could be struck down, which presumably would also invalidate the concept of the exchanges and thereby likely preclude coverage for the estimated 16 million Americans expected to gain insurance through this mechanism. The other possibility is for the court to invalidate the Medicaid expansion, which in this case would preclude coverage for the expected 16 million poor Americans who stand to gain that coverage under the ACA. In this scenario, it is presumed that most, but perhaps not all, of the law’s other provisions would remain intact.

In the third scenario, the court could decline to issue a definitive ruling at this time, based on a technical glitch that prevents the court from deciding on tax-related issues until such time as an individual actually pays the tax. Under this scenario, because no individual is currently subject to the penalty for declining to meet the individual mandate, the challenge would have to be put on hold and revisited probably sometime in 2015. In this case, the uncertainty surrounding state planning would assuredly continue.

Finally, there is a fourth scenario in which the court completely upholds the law, and the ACA becomes what is known as "settled law." A graphic representation of these scenarios, produced by the Kaiser Family Foundation, is available here.

Whatever they decide, it is expected that the Supreme Court disposition of the case should provide some certainty to the future direction of health reform in the United States. It will be critical to see what the justices say and what that means for MCH populations – but perhaps equally important will be to see what the voters say in November and if Congress will continue to try