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Phil weighs in on the Supreme Court hearings

by Philip F. Jacobus, CEO | March 28, 2012
Today the U.S. Supreme Court wrapped up the third and final day of hearings on the "question of the moment" for those of us in health care: whether President Obama's health reform legislation is constitutional.

Based on the questions from the nine judges yesterday, many analysts now think the individual mandate, which requires citizens to get health insurance by 2014 or face a fine and is a lynchpin of the law, could be endangered. Apparently even Intrade.com, the betting site, has upped the odds of the individual mandate getting scuttled this year to 64 percent.

If the individual mandate goes, the whole thing might go if the justices don't think the mandate is "severable" from the rest of the law.

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My company is a health care company. So it's no surprise my phone has been jumping off the hook from the calls I've been receiving from friends and clients about this. As with Bush vs. Gore, many people are worried, based on reports of the arguments, that the justices will play politics, and that when the decision comes later this summer, it will owe more to the ideology of the nine judges than to the merits of the law.

But I've also heard from friends who say this is the Supreme Court working the way it's supposed to. "I think it's going great," one friend said.

What I've noticed is this: if you don't like the Affordable Care Act and it gets struck down, you'll think the court based its decision on legal merits, not politics. But if you like the ACA, and it gets scrapped, you'll think it's just another sign of the increasing politicization of the court. (And vice versa, of course: if the ACA survives and you hate it, you'll blame politics. And if it passes and you back it, you'll say it's just the proper working of the law.)

I have my own thoughts on this. But I'm more interested in yours. Based on what you've seen, what do you think about how the court seems to be handling this? Let me know in the comments below.


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About Phil Jacobus

Phil Jacobus has been involved in health care since 1977, when he visited China to sell equipment. He has done business in 35 countries and still travels extensively. Phil is active in charity, helps rural clinics and always tries to help DOTmed users when he can.

Phil is a member of AHRA, HFMA, AAMI and the Cryogenic Society of America. He has contributed to a number of magazines and journals and has addressed trade groups.

Phil's proudest achievement is that he has been happily married to his wife Barbara since 1989, who helped him found DOTmed in 1998.

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Doug Baker

IF not the ACA , then what?

March 29, 2012 11:05

Phil, I believe the Supreme Court also has to consider, if they gut the law, and that dooms the entire ACA, now what?
That it goes back to the Congress and we lose 2-3 more years of haggling how to cut cost in healthcare etc? Most likely, and we dig an even bigger hole in the budget. Hopefully, they see the real gem in this act is the the start of real Accountable Care, which is the only hope of bringing doctors/hospitals/CMS together on designing a better, more cost effective method of healthcare delivery. Cost out does not come from leaving 50 million American under-insured or with no insurance, just look at current trends, we are still spending more.
For ACO's to work, everyone has to be enrolled so the outcomes are measured across all demographics. It comes down to "how do you get all Americans covered and participating" , and that is the dilemma the Court finds itself in. Invalidate the mandate and punt or????

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Philip F. Jacobus

IF not the ACA , then what?

March 30, 2012 08:46

Doug, You are correct with the grid-lock we see in Washington if we start from scratch it could take years. That would be bad news for all of us.

The founding fathers would have said that is not the court's problem.

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Marshall Shannon

The Court should Rule....... No Go

April 02, 2012 08:18

More cost effective method of healthcare delivery is the design of the law, but reading and using a calculator sends it somewhere else, it sends it to twice the initial costs estimated. Who exactly do you think pickup the difference in costs....

Laws should be based on clear constitutional law, and unfortunately this law was not and I think it needs repealed.

Not that we don't need something; just not this.

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Don Bogutski

The ACA, Obama care

April 04, 2012 12:41

I find the premise that SCOTUS should leave PPACA in place, or that 50 million people will lose healthcare amusing. Repealing "Obamacare" is the best thing that could happen to tax paying US citizens this decade.

Let's also expose the big lie of Obama care. The Federal Government will not be covering these 50 million people with insurance. The majority wil be shuttled into trimmed down, State MEDICAID programs where they will receive substandard, rationed and delayed care. At the very time States are already on the brink of insolvency because of exorbitant pension and healthcare expenses for their unionized workers. This additional financial burden will surely become the proverbial straw which breaks the camel's back. unlike the Feds, States can neither borrow indefinitely, or print money. They will go broke and then we will have a real problem in denying healthcare.

As with most of life, attempting a fix through a sweeping change only introduces disastrous unintended consequences. Instead of bringing healthcare to an additional 50 million people "Obama care", will make rationed healthcare much worse for the 250 million of us who currently have insurance.

What is truly needed are a series of small focused initiatives to tweak what is the best health care system in the world: First enact tort reform. Frivolous law suits account for more then 20 cents from each healthcare dollar which is spent. Second allow insurance companies to compete across all 50 states. This will reverse the perpetual annual increases in policy costs and is estimated to reduce healthcare expenses by double digits. Third is to empower every individual by making them responsible for their own healthcare decisions and also to pay for them with their own money. Too many folks treat their healthcare like it is free because they are on a program which is paid for by someone else, especially when it is the the US taxpayer paying for Medicare! Fourth is to reward those individuals who engage in healthful behavior such as reducing their weight, increasing exercise dietary changes, quitting smoking, etc. Fifth is to make the estimated 22 million young healthy adults who refuse to buy insurance because they see no need to given their health status and higher priorities, repsonsible should they need medical care in an emergency room. This could be handled in a variety of ways and with purposeful taxation. Sixth is to incentivevise private enterprise to help root out insurance corruption and Medicare fraud and ripoffs. The electronic umbrella which we live under creates the environment for many of these Medicare ripoff schemes. Making it profitable for the You tube, face book, hacker generation to take a leading role in preventing a portion of this fraud will be money well spent.

Those of you who believe the healthcare problem is too large and complicated to be handled by any other group but the Feds, consider; that the Post office is broke, Amtrak is broke, Medicare is broke and Social Security is broke. What a dismal record of performance to base your expectations of success on!

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L Kelly

Strike it down

April 10, 2012 03:19

This entire "law" needs to be struck down in its entirety. Not only is the mandate unconstitutional, the drunken politicians with their special interests and offshore accounts and lobbyists in their pockets need to go. Not only this, the healthcare system in the United States was around a 3 trillion dollar business as a whole per year. Now you want to add the fed adding another 1 trillion to the tab? Something has to give if this thing stays. This is nothing more than a takeover of the cash flow for control, Guaranteeing the current administration the Chavez like takeover of the USA.

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Jeff Weiss

The Constitution is clear

April 16, 2012 10:15

As Ronald Regans's Solicitor General commented, healthcare is interstate commerce, therefore the Constitution's Commerce Clause allows for Congress to regulate healthcare. Our elected legislators crafted and approved this regulation. Any result other than confirming the law as written by our elected legislators will be a setback to Constitution and the rule of law in the United States.

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Pete Schliebner

Really Jeff?

May 17, 2012 02:04

If you actually read the interview you are referring to, Charles Fried sounds like he has no respect for the constitution as a whole, he implies that congress is not subject to the separation of powers in the constitution, and he clearly thinks the Supreme Court has no legitimate authority. But then he is a professor of law at Harvard, which means he is about as liberal as one can be. Now, if healthcare is interstate commerce, as Charles Fried claims, then why can't healthcare insurance companies compete equally in all 50 states? And if "the Constititution is clear", as you claim, then why does President Obama spend so much time inventing ways to subvert it?

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