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Health care challenge about politics, not policy

By Aaron E. Carroll, Special to CNN
  • Aaron Carroll: Expect much talk on unconstitutionality of individual mandate in health law
  • Not long ago, Republicans like Charles Grassley, Mitt Romney supported mandate, he says
  • All must buy insurance for it to be affordable; politics changed some people's minds, he says
  • Carroll: Supreme Court will make final decision, but it's unclear mandate will be struck down

Editor's note: Dr. Aaron E. Carroll is an associate professor of pediatrics at the Indiana University School of Medicine and the director of the university's Center for Health Policy and Professionalism Research. He blogs about health policy at The Incidental Economist.

(CNN) -- It's very likely that you will see a lot in the news about Republicans' opposition to the individual mandate and their challenge of the constitutionality of health care reform in the next few weeks. The individual mandate is the Obama health care reform law's requirement -- ruled unconstitutional by a judge Monday -- that all Americans obtain insurance.

Surprisingly, little of that news will focus on the cost, quality or access in the U.S. health care system. What is being fought over now is politics, not policy.

It wasn't that long ago that the individual mandate wasn't controversial, even among Republicans. As recently as a year ago, Republican Sen. Charles Grassley was saying that the mandate enjoyed bipartisan support.

In the 1990s, Republicans proposed health care reform that included an individual mandate, and it was co-sponsored by Grassley and Sens. Orrin Hatch, Bob Bennett and Kit Bond -- all Republicans. Massachusetts' health reform law, signed by then-Republican Gov. Mitt Romney, also includes an individual mandate.

Today, of course, the mandate is unpopular -- the most clearly unpopular component of the new health reform law, in fact. That's not terribly surprising; nobody likes to be told what to do. For that reason, Barack Obama never campaigned on a platform to require everyone to buy insurance (although Hillary Clinton did).

However, as he came to understand, like Romney and others before him, a mandate (or an equivalent means to encourage insurance purchase) is necessary for all the other parts of health care reform -- the parts that people do like -- to work.

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One such thing is the ability to purchase affordable insurance even if you have pre-existing conditions. Hence, the law bans pre-existing condition exclusions.

For insurance companies to take all-comers at affordable rates, however, we need both healthy and sick people in the mix, buying coverage and paying premiums.

Sick people want insurance, so they'll buy it if they can afford it, even without a mandate. Sick people are expensive though. The only way an insurance company can cover their cost of care and still charge affordable premiums is if healthy people who cost less also enroll and pay premiums. But, because healthy people don't have as many high-cost health care needs, without a mandate they're more likely to forgo coverage until they become sick.

If only sick people get insurance, it raises the price for those who have it, and it becomes too expensive for many who need it to afford. That's what the individual mandate helps avoid. But, if we force people to buy insurance, then we have to make sure that it's affordable. That's why we have the subsidies.

This is the "three-legged stool" of health care reform. We want the pre-existing condition exclusion ban, which requires the mandate, which necessitates the subsidies. If you remove either of the latter two pieces, health care premiums will go up, fewer people will have insurance, and even fewer will use private insurance.

Now, through the courts, Republicans are attacking the mandate, threatening the stability of the three-legged stool. The most recent decision in Virginia declares the mandate unconstitutional, though other decisions have upheld it. I suppose it is predictable then that the decision is causing a firestorm on cable TV, in print and in the blogosphere. As a political story, it is the first chink in the armor of the law.

All the drama over the Virginia decision is overblown though. It does not end the debate over the constitutionality of the mandate. That will be decided in the Supreme Court, and it will likely take years for any case to work its way there. Moreover, the mandate does not even kick in until 2014, so it is extremely unlikely that any case involving the mandate will threaten the implementation of the law before then.

Further, it is not assured that the Supreme Court will strike down the mandate. Previous cases make it unclear that even the most conservative justices will find that Congress has overstepped its bounds.

And even if they do, it is not clear that finding the mandate to be unconstitutional will negate the whole law. While the health reform law does lack a severability clause, which assures that a bill survives even if part of it is "severed," precedent shows that the Supreme Court has let laws stand even when pieces are deemed unconstitutional.

Finally, even if the mandate is struck down, or perhaps before, Congress could make all this go away with a more palatable solution than the mandate.

Insurance companies could pressure states to pass their own mandates, like in Massachusetts, which would not be unconstitutional. Or, the system could be reconfigured to allow adults to opt out with an agreement that they can't easily opt back in. It's important to remember that what the system needs is enough healthy people to buy insurance to keep premiums low and the market stable. A mandate is only one way to achieve that.

These facts seem lost in the current media firestorm over court cases challenging the mandate. Instead, coverage focuses on the partisan divide, what it means for the Obama administration, and which team will win.

Right now, with respect to the things that matter, all the talk and pontificating is full of sound and fury, signifying nothing.

The opinions expressed in this commentary are solely those of Aaron E. Carroll.