If the Supreme Court strikes down all or part of President Obama’s health care law, it will have unraveled a legislative compromise that many liberals had viewed with suspicion from the beginning.
In one of the ironies of recent politics, Mr. Obama was a late convert to the merits of the individual mandate that now appears to be in danger of being declared unconstitutional.
But the president’s embrace of the mandate — and his willingness to abandon a so-called public option to get a health care deal — was a hard pill to swallow for many of his Democratic supporters.
The Affordable Care Act promises to provide health insurance to millions who lacked it. But it also stops far short of the idea that health care is a basic right for everyone living in the country. And it embraces the market-based system of private health care delivery that has long existed in America.
For many progressive activists and voters, the decision by the court in June could reopen a debate that they thought they had lost two years ago. Rather than be dismayed if the court overturns the health care law, some liberals may see it as an unexpected opportunity.
Politically, there is almost no chance of a new effort to achieve universal health care coverage before the election in the fall. But if the current law is overturned, eventually there would be a new push from Democrats to achieve the goals they have pursued for decades.
Still, it’s far from clear how progressives might regroup if the court rules against the mandate, as Tuesday’s questions from the justices suggested they might.
Here are three possibilities:
SALVAGE: If the justices invalidate the individual mandate but stop short of declaring the entire law unconstitutional, progressives could try to fix it through other means.
Jonathan Gruber, an economics professor at the Massachusetts Institute of Technology, has suggested a couple of options. Mr. Gruber was an adviser to both Mitt Romney on his health care plan in Massachusetts and to Mr. Obama.
In a paper written last year for the Center for American Progress, a research and advocacy group, he said the mandate could be replaced by a requirement that people “auto-enroll” in health insurance but with the ability to opt out if they wanted to.
Or, he said, people could be encouraged to buy insurance, and fined a penalty if they signed up after a deadline. That might encourage more participation in the health insurance market by young, healthy people.
But Mr. Gruber concluded that neither would be particularly effective, saying that “both alternatives significantly erode the gains in public health and insurance affordability made possible by the Affordable Care Act.”
EXPAND: If the court declares large parts of the health care law unconstitutional, another option for liberals would be a return to advocating other methods to expand the number of people covered by insurance.
They could push for an expansion of Medicare to include coverage of people at an earlier age. And they could seek to include more people in government-run health care programs that cover children and the poor.
Neera Tanden, president of the Center for American Progress, said she remained hopeful that the court would uphold the health care law. But if it doesn’t, she said she remained skeptical about other proposals.
“There is no proposal that I am aware of that operates without an individual mandate that gets you to that level of coverage,” she said in an interview with The Caucus on Tuesday.
Congress would be unwilling to act on expansions of government health care programs if the current law is invalidated.
“We are a long way away,” from another successful legislative effort on health care, she said. “It would be decades, and may not be in my lifetime.”
SINGLE PAYER: If Democrats make little progress on alternatives, some purists might decide it’s best to just renew the case for a single-payer system in which all Americans receive health care paid for by the government.
Sidney M. Wolfe, the director of the Health Research Group at Public Citizen, an advocacy group, has been pushing for government-run health care for decades.
In an interview Tuesday, Mr. Wolfe said a ruling against the current law could help start a renewed drive for a system that essentially expanded Medicare into a program for everyone, not just the elderly.
“If this is what happens, it may offer more incentive to say let’s decide once and for all that health care is a right,” Mr. Wolfe said. “It will certainly present an opportunity to a number of people.”
But it’s not clear where the support for such a change would come from, especially after the bruising fight over Mr. Obama’s health care plan two years ago. Ms. Tanden said that she did not believe the country would support such a change.
“I am not holding my breath for the Medicare-for-all option. Most people in America feel comfortable with the health insurance they have,” she said. “I would say to my progressive allies: the reason we have all been supporting the individual mandate is because it is the way in which we can get to near-universal coverage in my lifetime.”
“They may look at this as an opportunity to carry that torch again,” she added. “I don’t think the Congressional response is to look at single-payer as the option.”
