Getting past healthcare’s individual mandate

Supporters of President Obama's healthcare overhaul rally in front of the Supreme Court as the justices hear oral arguments on the 2010 reform law.
(Charles Dharapak / Associated Press)

Speculation about the likely death of “Obamacare” has raged ever since the Supreme Court heard three intense days of legal arguments in March. The pundits have crowed about how the individual mandate is the Achilles’ heel of President Obama’s healthcare law.

Indeed, anyone watching TV or reading newspapers could easily believe that healthcare reform revolves entirely around the individual mandate, which would require Americans to buy health insurance if they are not covered at work or by Medicare or Medicaid. Enemies of reform have demonized the mandate to scare the public, and they are urging the Supreme Court to use this provision to rule the law unconstitutional.

But what many Americans don’t realize is that the individual mandate would affect fewer than 2 of every 100 people, according to the best estimates. When all is said and done, a few Americans might still refuse to buy insurance — and nothing much will happen to them. There are exceptions for religious objectors and people who still cannot afford a plan. And the law includes only weak fines for mandate violators — token fines the Internal Revenue Service is at this point forbidden to enforce. The mandate brouhaha is truly much ado about almost nothing.


So what does the Patient Protection and Affordable Care Act do apart from the individual mandate? Three big things.

First, private insurance companies will be required not to deny or revoke insurance because of preexisting conditions. They can still make good profits, but not by dumping sick people or avoiding people who might become sick. Second, Medicaid will be expanded to cover about 16 million additional low-income people, and generous tax credits will be provided to help businesses and middle-class Americans afford private health insurance plans. Third, the law requires each state to establish an exchange, or virtual marketplace, where people and businesses can comparison shop for health plans and find out which tax credits they can use to help pay for a plan of their choice.

These steps are the essence of the Affordable Care Act — and although we rarely hear about it, polling shows that 60% to 70% of Americans, including a majority of Republicans, favor these core provisions.

What happens if the Supreme Court nixes the individual mandate? Politically, the law might actually be better off if the mandate is surgically removed. After a couple of weeks of doomsaying, the focus of public discussion will switch to the important provisions most Americans favor.

Ultimately, though, if the men and women in black robes rule out the mandate at the national level, then new tools must be found to make sure that people do not just wait until they get sick to obtain insurance. If we simply let people wait until they need coverage, health insurance will soon cover only the old and sick, and it will cost too much for everyone.

In fact, there are many alternative ways to make sure that irresponsible people don’t shift costs onto their neighbors. The most important is what the law already promises to do — extend coverage or subsidies to more than 30 million low- and middle-income Americans who currently cannot afford health insurance. Most people want the economic security and peace of mind that health insurance brings, so they will gladly obtain coverage if it is affordable. Beyond that, states could enact mandates of their own. Massachusetts has already done this successfully, and other states, including California, might follow suit. Alternatively, either state governments or the national government could create extra incentives to make sure almost everyone signs up.


Of course, other rulings at the Supreme Court are possible. By a bare majority, the court conservatives may use the controversy over the individual mandate as an excuse to throw out all of Obama’s reforms. But the real-world problems of insurance abuses and loss of access to healthcare will not go away. State governments will remain under enormous pressure to regulate insurers and find ways to help the uninsured. At the national level, reformers can push for “Medicare for More,” demanding that Congress extend that popular program to additional millions, starting with people in their 50s who often cannot obtain affordable private insurance if they lose their jobs.

It’s possible, of course, that the Supreme Court will surprise the pundits and uphold the law — period. That might finally jolt Obama and reform supporters into speaking up more vigorously. During the presidential debates leading into the November elections, more Americans would find out that the law mainly does things they strongly favor.

Once the fog of falsehoods drifts away and most voters understand what the law can accomplish — with or without the federal mandate rule — the enemies of reform will have a hard time convincing Americans that we should return to a world in which people face bankruptcy simply because a family member has an accident or suffers a serious illness. Americans are ready to say goodbye to that sad past.

Theda Skocpol, a professor at Harvard University, and Lawrence R. Jacobs, a professor at the University of Minnesota, are the authors of “Health Care Reform and American Politics.” They are directors of the Scholars Strategy Network, a new national organization committed to making public policy choices understandable.