CHARLESTON, W.Va. -- A key feature in the Affordable Care Act, is the coverage of virtually all Americans by some type of health plan. There will be substantial expansion of Medicaid to cover low-wage workers and their families and a state health insurance exchange that offers health plans and subsidies to individuals and small businesses.
Once these supports are in place, it will be each person's responsibility to enroll -- through an employer, a government program, or the health insurance exchange. This provision is referred to as the "individual mandate."
Based on the questioning raised during oral arguments on the Affordable Care Act before the U.S. Supreme Court, some observers believe that the court will find the individual mandate unconstitutional; that Congress cannot require Americans to have health insurance coverage or pay a penalty.
What happens next if the court holds the individual mandate to be unconstitutional?
Laws frequently have a severability clause that says if any part of the law is held unconstitutional, all other parts of the laws are to be held constitutional. Where there is no severability clause, as is the case with the ACA, previous courts have ruled that the court should determine if other sections of the law can stand on their own merit. Those provisions that are so intertwined with the unconstitutional provision that they cannot stand on their own are also stricken. However, if other provisions can stand on their own, then the court should not overrule the decision made by Congress and the president.
If the Supreme Court follows precedent, then there are probably only two other sections at risk of being stricken, if the individual mandate is found to be unconstitutional.
The first is prohibiting insurance companies from denying a person a policy because they have a pre-existing condition.
The second provision at risk limits what insurance companies can consider when establishing a monthly premium. Under the ACA, insurance companies can only consider a person's age, family size, whether they use tobacco, where they live, and if they participate in an employer-sponsored wellness program when setting a consumer's premium. This provision prohibits insurance companies from considering a person's health status or gender in setting premiums. If this clause is removed from the ACA, then insurance companies will be able to continue to charge sick people a higher premium and continue the practice of charging women a higher premium than men for the exact same policy, what is called gender rating.
These reform measures are at the heart of the insurance reforms in the Affordable Care Act. Losing these two provisions and allowing insurance companies to discriminate against people with pre-existing conditions and women are significant setbacks. Make no mistake about that.