Expert Panel Discusses Health Care Ruling

July 2, 2012 — One day after the Supreme Court issued its historic decision largely upholding the Affordable Care Act, a group of law professors and health experts came to Georgetown Law to dissect the opinion and what it means for Americans.

The government will have to issue comprehensive guidance on how states can enlarge Medicaid coverage by 2014, they noted, which raises questions about the impact on state budgets and the medical profession. But several points were clear. First, “there was plenty to make both sides either happy or apoplectic,” according to moderator Susan Dentzer, editor-in-chief of Health Affairs. And second, no one predicted the case would turn out this way.

“I thought it was barely possible that the court would uphold the [individual] mandate, and if you wanted to bet that they would do so with the chief justice casting the deciding vote on tax clause grounds, I would have given you a thousand-to-one odds,” said Professor Louis Michael Seidman, who saw Roberts’ decision as a political move.

“Folks who have been defending the individual mandate under the flag of the Commerce Clause and the Necessary and Proper Clause have to concede that that ship has sunk,” said David B. Rivkin Jr. (F’80, G’84), who was originally the lead counsel for the 26 states challenging the statute. “For me, this case has not been about health care; it’s been about the vitality of our constitutional architecture.”

For others, though, the decision means a green light for health reform. “I am convinced today that 16 million poor children and adults will have their benefits precisely because of what Justice Roberts did here,” said George Washington University Professor Sara Rosenbaum.

Visiting Professor Tim Westmoreland thought that the Roberts opinion did “no real harm to the Medicaid provisions of the Affordable Care Act,” because the enforcement tool that was struck down — i.e., the threat to withhold all Medicaid funding from states who don’t comply with the new law — would have never been carried out. But Westmoreland did object to what he saw as the majority’s mischaracterization of Medicaid and its conclusion that the act creates a new program rather than modifies an existing one. “Adding the remaining poor people in America to this program ... fits exactly with the existing program,” he said.

Professor M. Gregg Bloche, M.D., pointed out that the real costs Americans face are due to skyrocketing medical costs overall. “The real cost problem is the long-term trajectory of our health care spending … our fiscal equivalent of global warming,” he said. “It’s a challenge that our politics has hardly begun to take up.”

To view a C-SPAN webcast of the discussion, click here.

-- Ann W. Parks

On The Web

Maps & Directions

Google Location Map Georgetown University Law Center 600 New Jersey Avenue NW Washington, DC 20001