Penn professors weigh in on constitutionality of healthcare reform's individual mandate

Washington isn’t the only hotbed for the healthcare debate.

While the Supreme Court deliberates the constitutionality of the Patient Protection and Affordable Care Act, Penn professors are also debating the issue.

The main function of the act, passed in 2010, is expanding insurance coverage, School of Nursing professor Matthew McHugh said. “Insurance companies can no longer charge different rates for sicker patients and [those with] preexisting conditions.”

The act also allows young adults to stay on their parents’ health insurance plan until the age of 26.

The act’s most controversial provision is its individual mandate, which requires the vast majority of Americans to purchase health insurance.

One of the primary questions before the court, McHugh said, is “the individual mandate and whether, under the commerce clause, this was a constitutional exercise of congressional authority.”

Supporters of the act argue that it is within the purview of the Constitution, specifically Congress’ power to regulate interstate commerce.

Opponents of the act fear that if the government can compel citizens to purchase health insurance, it can force them to buy anything.

According to economics professor Rebecca Stein, due to the ban on discriminating against preexisting conditions, the individual mandate is a necessary component of the act. Without it, healthy people have little incentive to buy insurance until they are sick, a phenomenon known as adverse selection.

“Adverse selection is a problem in this market,” she wrote in an email. “Low risk (young, healthier) consumers are more likely to decline coverage. Sick people opt in.”

The court heard an unprecedented six hours of oral arguments over three days last week.

The prevalent belief is that the four liberal justices will vote to uphold the act, while the four-member conservative wing of the court will vote to overturn it. Most analysts, claiming that the White House’s representative did a poor job of arguing his case, believe Justice Anthony Kennedy — the court’s usual swing vote — will side with the conservatives, and the individual mandate will be struck down.

“I’m more optimistic,” McHugh said. “I don’t think that the oral arguments necessarily are the only predictor, particularly in such a historical and landmark case … There were potential signs that one or more of the justices could have been swayed.”

Political science professor Rogers Smith, however, believes the oral arguments will have more bearing on the court’s decision.

“It’s hard for me to imagine that [the justices] would’ve asked for six hours of oral argument and be totally uninterested in what happened.”

Even though Smith personally supports the constitutionality of the act, he said “it is slightly more likely that the law will be struck down than [that] it will be sustained.”

If the court finds the individual mandate unconstitutional, it can strike down either just that part or the entire act.

The question is whether the two are “inextricably tied,” McHugh said.

Even if the court decides that the rest of the act is constitutional, the “act cannot hold without the coverage mandate,” Stein wrote.

Still, she believes there is a silver lining. “The failure to develop a market driven reform may cause America to finally understand that health insurance has to be national in scope,” she wrote.

The court will most likely hand down its decision sometime in June.

“The Supreme Court does have the fate of the bill in its hands,” McHugh said.

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