What If The Supreme Court Were to Rule Health Reform Law's Individual Mandate Unconstitutional?

If that were to happen, an unlikely possibility, the current health reform law would collapse like a House of Cards. No pun intended. But the pun could be relevant since the newly elected House of Representatives has vowed to repeal the reform law. The new House will fold Obamacare if it can.

But what then? What would the House have to offer to replace the health reform law? What concrete proposals would the new House have to cover those 32 million now proposed to be covered by reform law? How would the House address problems on covering those with pre-existing disease, young people up 26 covered under their parents’ plans, seniors with unaffordable drug bills in the Donut Hole, those with life-time expense limits?

It is not enough to be a naysayer about the Accountable Care Act, the preferred euphemism for Obamacare. Richard Amerling, MD, a Director of the Association of American Physicians and Surgeons and author of the Physicians Declaration of Independence from the federal government, offers this “Conservative Way Forward on Health Care” (November 22, 2010, The Health Care Blog).

1. Transfer the tax deduction for health care spending from employers to individuals. This would end the absurdity of purchasing health insurance at the "company store," a practice that limits individual choice and liberty, nourishes a sense of dependency, and promotes overuse of care. This policy, an accident of WW II wage and price controls, was the “original sin” in health care financing; doing away with it would empower consumers to shop for the best plan for their families, which will lower premiums.

2. Remove barriers to the interstate sale of health insurance. There is broad agreement on this proposition. It would increase choice and competition between insurers and drive down premiums by effectively ending state mandates that drive them up.

3. Deregulate and allow greater contributions to Health Savings Accounts. These fabulous tax shelters give individuals more control over their health spending, and, coupled with an inexpensive policy to cover catastrophic illness (i.e., true insurance), are all most people need. By returning most health care purchasing decisions to consumers, spending will immediately be slowed and prices curbed. This is the conservative, free market, already tested and proven way to "bend the cost curve down."

4. Follow the recommendations of the bipartisan Breaux Commission and give Medicare beneficiaries a means-tested stipend to buy private insurance. This solution came during the Clinton era but was too free-market to pass muster with Bill and Hillary. With Medicare moments from insolvency, there should again be a bipartisan consensus to reform this behemoth.

5. Transfer (gradually) all Medicaid responsibility to the states. Federal support for Medicaid allows much greater spending than would otherwise occur. It forces frugal states to subsidize lavish coverage in New York, California, and elsewhere. States should have complete freedom to organize their Medicaid systems along their own priorities, in exchange for losing, over perhaps five years, the federal subsidy. This would encourage states to find innovative ways of providing health insurance for the poor, such as individual health accounts, or subsidies to buy private insurance.
The latter two points would allow the mammoth Center for Medicare and Medicaid Services to be mothballed, though Medicare could retain a role as insurer of last resort for those with pre-existing, expensive, chronic diseases.

6. Institute a "loser pays" system for medical malpractice to cut frivolous lawsuits. The ability to launch a lawsuit (and this applies beyond medical malpractice) with minimal financial risk is the reason behind the explosion of malpractice litigation, with all the associated costs. Tort reform at the federal level would require the Senate to override the trial lawyers’ veto, which could be a problem. This reform should be pushed at the state level.

7. Finally, for true patient protection, let's propose a constitutional amendment to guarantee the individual's right to privately contract for medical care. This will eliminate for all time the threat to the private practice of medicine and assure that, no matter what system is in place, patients will always be allowed to spend their own money on care.

Amerling’s list represents a conservative point of view. Obama supporters will insist , no doubt, that his list fails to address the “moral imperative” of universal coverage, guaranteed by a compassionate government.

“Progressive” solutions” for health reform as dictated from above have a wonderful theoretical ring to them, require “demonstration projects” to prove, but have yet to work on a broad scale in the “real world.”

These solutions, which are heavy on government oversight, include:

• "Mandatory Health Information Technology" (HIT), as dictated by Washington.

• "Comparative Effectiveness Research" (CER), that will dictate to physicians what they may and may not do.

• "Pay-For-Performance" (P4P) incentives, that will provide the enforcement for CER compliance.

• "Chronic Disease Management," (CDM), to intervene with patients with chronic conditions, and

• "Accountable Care Organizations" (ACOs), that will pull all of this together into a single organizational structure.

HIT, CER, P4P, CDM, ACO. Those are the acronyms that will be pondered, weighed, debated, and dissected in the Congressional hearings about to be held in the House of Representatives to see if they lower costs and raise quality. The debate will not close the yawning ideological gap between conservatives and liberals.