James Bond has been granted a countless number of lives over his long career as a spy. After 22 films and countless bad-guys, Bond has survived menacing laser beams, skydiving without a parachute, being thrown out of high-rise buildings, and extreme gunfire. Each time, Bond has emerged unscathed, always living to “die another day”, as is put by Bond himself.

To this end, Bond finds much in common with The Patient Protection and Affordable Care Act (PPACA).

On June 28, the Supreme Court issued its long-awaited ruling on the constitutionality of the Patient Protection and Affordable Care Act. As readers of this blog undoubtedly know by now, the law was generally upheld, thus thwarting the latest attempt by its detractors to eliminate it prior to full enactment.

So then, for those intent on eliminating PPACA, how many more opportunities remain?

Well, probably just one: this year’s Fall elections.

However, a successful derailment at this point is a matter of perspective and is contingent on which portion of the law being examined. Some provisions have likely achieved ultimate safety by making it this far, while other provisions may have only lived to die another day.

Or not.

The Supreme Court ruling may well have been the last occasion for a wholesale overturning of the health reform law. Though Republicans will certainly attempt to repeal the law in the current and subsequent Congressional sessions, such efforts will have varying degrees of success. Absent a majority in the Congress and possession of the White House, PPACA will undergo minimal disruption. And in the event of such a Republican “sweep”, there are still limitations to what the Republicans could feasibly do.

Consumer-protection provisions such as a ban on rescissions, annual and lifetime limits, and dependent coverage until age 26 are likely to survive, at the very least in “replace” legislation. Further, Republicans will likely be pressured to find an alternative means of covering pre-existing conditions. Also, efforts established by PPACA that endeavor to transition providers from the traditional fee for service (FFS) payment model toward risk-based payments found through Accountable Care Organizations would see a continuation.

However, other, major parts of the law could be seriously disrupted if PPACA does not clear the election hurdle. Under a Republican-sweep scenario, the premium subsidy program would be either completely repealed or replaced with something altogether different. Along with changes to the subsidies would be a huge shift in health insuranceexchanges. One could bet that Republicans will elect to not leverage the federal government’s influence in the development of exchanges, opting instead to extend additional power to states.

Other major provisions in the law such as the Medical Loss Ratio, the individual mandate, new requirements on rate-review, penalties imposed on employers, and others are all highly likely to be repealed in a Republican sweep scenario.

We can fairly surmise that certain elements of the law now have long-term staying power, while others face an uncertain future based on the outcome of this year’s election. Regardless, the Supreme Court ruling should be sufficient in moving industry and additional states in further implementation of the law. In any case, you can bet that the administration will put its foot on the gas over the next 4 months to accelerate implementation as far as possible.

Unlike James Bond, PPACA will eventually have a certain fate with real implications for the entire health care industry. Its final outcome will likely be determined on November 6^th.

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Following the administration’s “train wreck” performance at oral arguments, President Obama preemptively chastised the Supreme Court, remarking that it would be an “unprecedented, extraordinary” step of judicial activism for an “unelected group of people” to overturn, in whole or in part, the Patient Protection and Affordable Care Act (PPACA). By so stating, he was not trying to bully the Court, as some have posited, nor did his comments stem from a lack of constitutional intelligence, as others have claimed (after all, judicial review is at least superficially understood by every Civics 101 student and, certainly, former constitutional law lecturers). Instead, President Obama was staking out the Democratic Party’s response to a potentially (indeed, likely) unfavorable decision—a response that exploits the “Supreme” ignorance of most voters, i.e., their inability to distinguish between judicial impropriety and dissonant, though legally defensible, rulings. Democrats’ worst-case-scenario, election-season refrain will be: “An activist conservative Court, not the Constitution, is responsible for PPACA’s demise.”

Republicans will be no less swift to raise the judicial-activism or justices-as-politicians alarm, in the event that the Court upholds the law in toto. As the argument goes (and will go), “Partisanship is four Democratic-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president.”

In truth, the pejorative use of “judicial activism”—i.e., decisions based on a judge’s own beliefs and (political) preferences, rather than on the law as written—has been mostly a ploy of the political right. For decades, the term has been used to manifest contempt for liberal justices’ promotion of a “living Constitution,” on display in decisions like Roe v. Wade, and for Democratic presidents who’ve prioritized, in nominating would-be justices, traits like “empathy” and “feeling.” The left’s recent embrace of the term, which has coincided, unsurprisingly, with a period of increasing conservatism at the Court, has merely confirmed what has been painfully obvious to so many for so long: “[J]udicial activism has become a codeword for judges . . . you don’t agree with.”

For their part, the justices have decried the “activist” label as “insult[ing],” “conclusory,” and “grossly distorted.” Those with intimate knowledge of Supreme Court inner-workings, too, vigorously maintain that the Court’s professed devotion to impartiality is more than political expediency or calculated self-promotion. In fact, today’s justices are more disengaged from public (and political) life than any of their high-court predecessors. And despite its strongly conservative bent, “[t]he Roberts court is finding laws unconstitutional and reversing precedent”—the hallmarks of judicial activism—“no more often than earlier courts.”

Perception is reality, though. The voting public, notwithstanding its historical confidence in the Supreme Court, is impressionable. And in an election as closely contested as this one will be, every vote counts. So, while “the supposed danger of judiciary encroachments on the legislative authority . . . is in reality a phantom,” perceived politicization of the Court may well mean the difference between winning and losing.

Parker Larson is an Analyst at Leavitt Partners. As an analyst, Mr. Larson conducts legal research and analysis in support of Leavitt Partners’ knowledge and thesis development, and prepares or contributes to many of the firm’s product-driven written materials.

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In anticipation of the forthcoming Supreme Court decision on the federal health reform law, Leavitt Partners has analyzed how various rulings by the court, when combined with 2012 election results for the White House and Congress, may impact the future of American health care. The analysis draws upon the significant experience and expertise of the Leavitt Partners FuturePanel™, an authoritative group of health care thought leaders who have shaped and continue to guide the American health care system.

The analysis has been distilled into a simple user interface called Health Reform Bracketology. Leavitt Partners’ principals are available to explain the analysis and comment on implications.

How does Health Reform Bracketology work?

Much like the brackets used in sporting competitions, Health Reform Bracketology prompts users to select whether the individual mandate and other aspects of the federal health reform law will be upheld or overturned.

Next, the user is given the option to select whether a Democrat or Republican will occupy the White House and which political party will secure a majority in Congress.

Once these selections are made, the tool shares an applied analysis by Leavitt Partners of the implications to Medicaid, Medicare, insurance reform, premium subsidies, health insurance exchanges, delivery reform and future legislative action.

The analysis reveals the likely future of health care based on user-selected outcomes of the Court decision and the elections.

Free Download

Download the interactive Health Reform Bracketology report here (3.3kb PDF).

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