Obama’s healthcare law – and his legacy – in the balance

It is, without doubt, the most important legal decision this century: at stake, not just the president’s most important piece of legislation, but his legacy – and his chances of re-election in the autumn. The nine justices on the US Supreme Court will rule on Thursday at 10am, on a challenge to the Affordable Care Act, that requiring people to buy health insurance coverage is unconstitutional.

Getting to this point has cost a huge amount of time and political capital, for the Obama administration: but then reforming health care, and expanding coverage to millions more Americans, had long been a cherished Democratic dream. Now, though, the nation waits to hear whether the law’s key provision, that insurance mandate, will be thrown out – or whether the entire law will be struck down.

Those who know, don’t talk, and those who talk, don’t know. Supreme Court Justice Ruth Bader Ginsberg

Speculation has been feverish, and at this moment it is the conservatives who are confident of success, planning parties to celebrate the demise of the law they destest so much, atlhough House Speaker John Boehner has warned against too much making merry. At this stage, of course, no-one can really second guess the court; as Justice Ruth Bader Ginsberg said recently: “Those who know, don’t talk, and those who talk, don’t know.”

Health care: the options

So what are the options? The law’s opponents argue that requiring citizens to have health insurance exceeds the powers accorded under the constitution’s commerce clause. They also say that forcing states to expand Medicaid coverage to anyone whose income is 133 per cent of the federal poverty line is also unconstitutional.

None of the options appear to be particularly attractive to the public: a recent poll by Pew Political Research shows that fewer than half of those surveyed would be happy with any decision. Just 39 per cent supported a move to leave the law as it is, 44 per cent were in favour of overturning the entire thing, while 40 per cent backed getting rid of the insurance mandate, but leaving the rest to stand.

The legal arguments on both sides have been keenly picked apart, but in the real world, this is, and has always been, a fundamentally political debate. This Supreme Court has ruled, five to four, on the side of some hugely controversial decisions – Bush v Gore in 2000, refusing a recount in Florida which handed the presidency to George W Bush. And in 2010, the Citizens United ruling which has opened the floodgates to unlimited campaign contributions.

It is the issue which fired up the Tea Party activists back in 2009, with their talk of ‘death panels’ and state socialism. It is the issue on which Obama staked his very leadership, confessing: “Michelle and I are perfectly comfortable if we’re here only one term, if we feel like we really accomplished something.”

Thinking the unthinkable

Now, though, the White House has begun contemplating a scenario that once seemed unimaginable: that all the time, the cost, and the political capital, might have been in vain. They stand accused, by some progressives, of failing to campaign hard enough – for losing the narrative to the law’s opponents, for failing to take the legal threat at all seriously.

A cursory look at the big money also reveals that opponents of the healthcare law outspent supporters by three to one. Since March 2010, more than $200m was spent on negative ads, with just $69m on positive ones. One reason, for sure, why a clear majority of people still say they’re against it, despite approving of many of its key elements.

Unless the court decides to keep the law intact, the next steps are pretty complicated: some provisions have already begun to kick in, namely allowing dependents aged under 26 to be covered by their parents’ insurance, and requiring full coverage of preventative care like prostate screenings and mammograms. It could be left to individual states to decide how to cover the uninusured: experts say if the mandate is struck down, premiums will soar, leaving many unlikely to seek cover until they actually fall ill.

Profound consequences

A study of two states where employers were required to provide insurance, but people didn’t have to buy it, shows that’s exactly what happened. In Kentucky, many insurance firms fled the state altogether, while some premiums more than doubled. In Washington state, the number of people without insurance soared by 30 per cent. EJ Dionne, writing in RealClearPolitics, cited what he called the Joni Mitchell rule: “You don’t know what you’ve got till it’s gone”.

Whatever the decision, the consequences for November’s election will be profound. Upholding the law would hand Obama a psychological boost at a critical moment, while the symbolism of defeat would weigh heavy indeed. Presidential historian Robert Dallek told the New York Times: “Many will conclude that he bet on his major reform, and the Supreme Court defeated it, and he lost his hold on the presidency.”

In my first term, we passed health care reform. In my second term, I guess we’ll pass it again. Barack Obama

Of course the prospect of a group of unelected judges casting out such a major piece of legislation could have the opposite effect, re-energising the Democratic base and giving them a major incentive to turn out in November: but what a price to pay. This isn’t just about political leadership and the role of government – the health and well being of tens of millions of people depend on Thursday’s decision.

“In my first term, we passed health care reform,” Obama joked at April’s White House Correspondent’s dinner. “In my second term, I guess I’ll pass it again”. Lose this week, though, and he may not get that second term at all. Lose this week, and the accomplishments of his White House years may be thrown into doubt.

It is all up to the nine justices, then: with the vote of Judge Anthony Kennedy thought to be the decider. In two major SCOTUS rulings on Monday, he apparently sided with the liberals. Read into that, what you will.

Felicity Spector writes about US affairs for Channel 4 News