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What Happens to Health Care if the Court's Conservative Activists Just Strike Down the Mandate?

The answer—if the court does not throw out the entire law—is that quite a bit would remain

On the third day of hearings on the new federal health reform law, the U.S. Supreme Court took up the legal question of "severability," or whether the entire law or key parts—such as its requirement that all Americans have insurance—can remain or be struck down.

The court focused on three scenarios about the coverage mandate: eliminate it entirely; strike it and related requirements that insurers must sell policies to people with pre-existing conditions and limit costs associated with those policies; or invalidate the entire law. The justices faced a fourth choice, leaving the entire law intact.

There did not appear to be any consensus, even among the conservative justices, to throw out the entire law; they literally laughed at the prospect of taking a red pen to its 2,700 pages and crossing out lines page by page. Instead, they and lawyers on both sides put forth arguments about the consequences of all these scenarios. The conservative justices clearly suggested that they would like to see the mandate go, but were hesitant about undermining the entire law and did not trust that Congress could fix it.

The session, and another one on Wednesday afternoon looking at whether the reform was coercing states to expand their Medicare programs for low-income people against states’ wills, raise the question of what would remain of the landmark reform if the court takes out what the government says is its heart—the mandate that all Americans have health care.

The answer—if the court does not throw out the entire law—is that quite a bit would remain. A dozen new major policy initiatives would still be on the books in federal and state law. But a more fundamental question would then arise: who would pay for all these steps to cover the uninsured and create new and more affordable options for the middle class?

The new Urban Institute study found that only 6 percent of the U.S. population would be subject to the mandate and penalties for not buying insurance under the law. The reform’s opponents and the government have argued the mandate is the heart of the law. But it is the "heart" of the law not because it is extending care to tens of millions of Americans, but because it is siphoning the money needed to pay for all the envisioned reforms.

There is an alternative progressive viewpoint concerning the so-called centerpiece of the health reform—or paying for it. The government could raise taxes and not rely on market forces. However, the deal that the Obama administration, Congress and insurers cut and put into law opted to pay for the massive restructuring through premiums.

What Could Remain on the Books

The law still has a dozen major sections that, if funded, would significantly expand health coverage to many sectors of society. Although most of its provisions are to take effect in 2014, already more than 2.5 million young adults have been given coverage by increasing the age that they can remain on their parents' policies. The law also has re-jiggered payment rates for Medicare, the government’s health program for seniors, which have also gone into effect, offsetting the costs of prescription drugs.

The law does many sweeping things. It expands government health programs to cover the poor, low-income people and the uninsured. It expands private insurance options for the middle-class as well as employers, particularly small businesses. It also alters tax law to subsidize premiums for people and businesses in many income brackets, and the federal government pays the up to 90 percent or more of the costs of new state programs.

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