What’s the rush?

Court’s move could mean re­form rul­ing will land in the heat of 2012 elec­tions

Modern Healthcare - - Opinions Editorials -

Early last week, the U.S. Supreme Court re­fused to punch the ticket that would have al­lowed one of the legal chal­lenges to the health­care re­form law to ride an ex­press train to the nation’s high­est court. Jus­tices voted unan­i­mously to re­ject “fast track­ing” oral ar­gu­ments in a chal­lenge to the con­sti­tu­tion­al­ity of a key pro­vi­sion of the Pa­tient Pro­tec­tion and Affordable Care Act, the man­date to re­quire in­di­vid­u­als to buy health in­surance. The chal­lenge em­anates from a law­suit filed by Vir­ginia At­tor­ney Gen­eral Ken­neth Cuc­cinelli against the fed­eral gov­ern­ment.

While the high court made no com­ment and ob­servers say no con­clu­sions about the law­suit’s mer­its should be drawn from the de­ci­sion, the jus­tices’ ac­tion—in­ac­tion, ac­tu­ally— means the legal process will play out as it nor­mally would, with­out any early in­ter­fer­ence.

The stan­dard for grant­ing ex­pe­dited chal­lenges to the Supreme Court, which are ex­ceed­ingly rare, is whether “the case is of such im­per­a­tive pub­lic im­por­tance as to jus­tify de­vi­a­tion from nor­mal ap­pel­late prac­tice and to re­quire im­me­di­ate de­ter­mi­na­tion.” Do the con­sti­tu­tional ques­tions and prin­ci­ples in­volv­ing the re­form law meet the cri­te­ria? Ap­par­ently not, judg­ing by the 9-0 de­ci­sion.

Part of the rea­son for the in­ac­tion also could stem from the fact that ar­gu­ments in the Vir­ginia case be­fore the 4th U.S. Cir­cuit Court of Ap­peals in Rich­mond are sched­uled to be­gin in a mat­ter of days, with some in­di­ca­tors point­ing to the case fi­nally mak­ing it to the Supreme Court dur­ing the term that will be­gin in Oc­to­ber. And then pos­si­bly look for a de­ci­sion to be handed down in the thick of the 2012 pres­i­den­tial elec­tion. It will be high drama no mat­ter which way the jus­tices rule. So given that the next stage of ap­peal in this case is im­mi­nent, why would there be a need to rush to early in­ter­ven­tion?

Af­ter the high court’s de­ci­sion not to go the fast-track route, Vir­ginia’s Cuc­cinelli is­sued the fol­low­ing state­ment: “We asked the United States Supreme Court for ex­pe­dited re­view of our law­suit be­cause Vir­ginia and other states are al­ready spend­ing huge sums to im­ple­ment their por­tions of the health­care act, busi­nesses are al­ready mak­ing de­ci­sions about whether to cut or keep em­ployee health plans, and cit­i­zens are in limbo un­til the Supreme Court rules. Ask­ing the court to ex­pe­dite our law­suit was about re­mov­ing this crip­pling and costly un­cer­tainty as quickly as pos­si­ble.”

Nat­u­rally, there is some legal un­cer­tainty given the con­flict­ing rul­ings by sev­eral fed­eral judges. To date, three have ruled that the Affordable Care Act passes con­sti­tu­tional muster, while two judges have ruled just the op­po­site re­gard­ing the in­di­vid­ual man­date. One ju­rist in Florida stated in his rul­ing that since the un­law­ful in­di­vid­ual man­date was the linch­pin of the re­form pack­age, the whole thing was es­sen­tially void. He later back­tracked on that.

What jumps out from Cuc­cinelli’s state­ment is the word “crip­pling.” We’ve been crip­pled by the legal skir­mishes over the Affordable Care Act? Re­ally? And do we truly find our­selves in limbo be­cause of this? It’s more over-the-top rhetoric that now seems to come with the ter­ri­tory when­ever the health­care re­form law is dis­cussed. The sky is al­ways fall­ing.

Plenty of the chal­lenges fac­ing our nation, es­pe­cially our econ­omy, could crip­ple us. Un­em­ploy­ment lev­els re­main dev­as­tat­ingly high. Our stock­pile of na­tional debt could one day crowd out so much of our coun­try’s trea­sure that it be­comes cat­a­strophic. Even to­day’s surg­ing fuel prices, be­cause of their rip­ple ef­fect, threaten the nascent eco­nomic re­cov­ery.

For health­care, how­ever, it’s not the year-old re­form law that’s crip­pling; it’s the specter of the al­ter­na­tive.

DAVID MAY As­sis­tant Man­ag­ing


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