Obama’s Healthcare Reform Makes Its Way to the Supreme Court

One of the great mysteries of Barack Obama’s administration is why his healthcare reform hasn’t found more popular support. While we can gain some understanding from looking at the political and historical reasons, the reality is that despite its unpopularity, the Affordable Care Act —the reform’s official name—is the most ambitious project of this presidency and Obama’s principal accomplishment to date. The work, and in many respects Obama’s re-election prospects, are now in the hands of the Supreme Court.

It is the second time this century that a Supreme Court ruling may determine who will sit in the Oval Office. The first case, in 2000, was more direct. The Court declared George W. Bush the victor in the elections against Al Gore after a long and controversial recount. Now, ruling the healthcare reform unconstitutional could destroy Obama’s chances. In contrast, a favorable verdict would deprive the opposition of what has been, until now, its primary argument in the ongoing electoral campaign.

Tomorrow, the Supreme Court will begin to hear arguments in favor of and against the law. A decision will be announced before the current judicial term is over, at the end of spring. After many months of political battles and lawsuits at various levels of the justice system, the presentation of arguments before the highest court is a decisive moment in which, for the last time, the White House will have an opportunity to defend the legitimacy of its cause. Several public appearances have been scheduled to coincide with the crucial date. At stake is Obama’s fate, and on a broader level, the way the government and citizens interact.

The law includes numerous changes from the current healthcare system. Some are already in force, with the majority to be implemented in the coming years. It does not attempt to nationalize the system but rather to make it more fair and sustainable, although services will still be provided by the private sector. Its primary objective is to eliminate some of the abuses committed to date by insurance companies —like excluding patients for preexisting medical conditions— and to guarantee that all Americans have health coverage. It makes it mandatory to obtain coverage and offers subsidies to people who cannot afford it.

Although a similar model was proposed years ago by the Heritage Foundation, a conservative think tank, and a very similar law was passed in Massachusetts while current Republican presidential candidate Mitt Romney was governor, the right considers the reform a serious assault on individual liberty and has vowed to revoke it when it regains power.

Voters are divided and confused about the extent of the law. In the most recent poll about the issue last January, 36 percent were in support of its revocation and 21 percent called for it to be upheld. The majority was in favor of some parts of the law, but against others. For example, 71 percent supported prohibiting insurance companies from dropping clients for pre-existing medical conditions.

The most polarizing aspect of the reform is that it is mandatory—only 19 percent of Americans support this requirement. Since the law was first debated in 2009, it has been the target of criticism from all sides. It is not difficult to convince this country, so rooted in individualism, of the dangers of government interference —that after requiring that you buy insurance, it will eventually force you to eat your vegetables or to buy only red cars.

The White House considers the requirement essential for the sustainability of the system: if not done this way, it would only insure those who are sick, who must pay huge insurance fees in order not to bankrupt the insurance companies. Mirroring European public health systems, the system proposed by Obama rests on the principle that the healthy share expenses with the sick, given the high probability that the former will someday also need health assistance.

The government’s lawyers are defending the reform using a section of the Constitution called the Commerce Clause, which gives the federal government the authority to regulate commercial activity with foreign countries and among the states. The specific content of that section is the subject of controversy and varying interpretations. Imposing a purchase is not a regulation of trade, some believe. Others reply that regulating a healthcare system for the entire nation is like regulating traffic rules: it also requires people to obtain a license in order to drive.

Thus far, this has been the general tone of the debate. We will hear better formulated and more precise arguments starting tomorrow. It may also be possible to get an idea of the judges’ final decision, impossible to predict at this point, from the questions that they ask.

The fact that the majority of the court’s members —five of the nine—tend to be conservative does not make the prediction easier. Some of the judges that form the majority have defended the application of the Commerce Clause in cases somewhat similar to this. Additionally, the judges know the political ramifications of their decision. Their careers are not at risk; they are appointed for life and do not owe allegiance to anyone. In these extraordinary times, we must trust in their independence. The White House is convinced of its triumph and says it has no Plan B.