Health Care
2:04 pm
Thu June 28, 2012

What's Next For Healthcare, At Home And On The Hill

Originally published on Tue July 17, 2012 8:02 pm



This is TALK OF THE NATION. I'm Neal Conan at the Aspen Ideas Festival, but the big news today comes from Washington, where the Supreme Court upheld President Obama's health care law in a series of five-to-four votes. In a surprise, Chief Justice John Roberts joined the four liberal members of the court.

In his majority opinion, he said it wasn't the court's job to rule on the wisdom of the law but on whether it passes constitutional muster. More on the ruling in just a moment. Later in the hour, we'll talk with national political correspondent Mara Liasson about the effect of today's decision on the presidential election and with health policy correspondent Julie Rovner about what happens now.

If you have questions about the ruling and where we go from here about politics or on healthcare, give us a call, 800-989-8255 is the phone number, the email address You can also join the conversation on our website. That address is We'll also get questions from the audience here at the Grand Ballroom in the Hotel Jerome. Thanks, everybody, for coming in today.


CONAN: But we begin with David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune. He's on the phone from his office in Washington. And David, this is a pretty dramatic day there in Washington.

DAVID SAVAGE: Yes, quite an interesting scene and quite a surprise, too. I don't think many people were thinking that John Roberts would be the one who would save President Obama's healthcare law. Justice Kennedy dissented with - the four conservatives, dissented and said they would have struck down the law entirely.

Chief Justice Roberts also came up with a way to save the law that I don't think many people had focused on. You know, this was debated about whether the so-called mandate was an unprecedented requirement that all Americans buy a product. You know, we've had endless discussions about the broccoli metaphor and whatnot.

Roberts essentially agreed with the critics that you couldn't, Congress couldn't mandate the purchase of goods, but he said this law could also be justified as a tax. And I've said to people - my own, sort of, homemade example - if I said to you Congress is going to pass a law that said American families are required to have children or pay a tax penalty, the first part of that sounds totally unconstitutional. You couldn't require families to have children.

But if you said if you don't have children, you pay a tax penalty, that's sort of the way our system works. You know, that you don't have children, you end up paying at a higher rate and lower exemptions. We sort of accept the fact that there are a lot of tax consequences. And Roberts said - that's essentially how he upheld the law, said this is something that you would - in 2015, if you don't have health insurance, and if you have a decent income, some income, you would pay what they call like a personal responsibility payment with your tax return.

And he said that sure looks like a tax, and Congress has the power to impose taxes, and therefore it's constitutional as a tax.

CONAN: Interesting that in Congress, when the law was debated, the Democrats did not want to call it a tax because, well, who wants to vote in favor of higher taxes. Nevertheless, as you're saying, the chief justice decided this is not on the basis of the "commerce clause" of the Constitution that Congress has the power to do this, but rather if it looks like a tax, and it acts like a tax, it is a tax no matter what they call it.

SAVAGE: That's exactly the constitutional logic. You know, that the government said - the government did say in its briefs, by the way, they did make this argument, it just got very little attention at the oral arguments or anywhere else. They said if you look at this law, get away from the rhetoric about the mandate, look at the way this law works, nobody's going to be prosecuted or punished or fined if they don't have insurance.

This is not some sort of true legal mandate. All it is if you don't have insurance, you pay this tax penalty. And the government said look at it that way, it's a tax, and that's the argument that the chief justice agreed with.

CONAN: One part of the law was struck down, and that involved the requirement for the states to provide more Medicaid coverage. That part was upheld, actually, it was just the teeth of that part where they were going to say if you don't do it, we're going to take away all of your Medicaid.

SAVAGE: Yes, that's right. This one's a little bit complicated to explain, and I think it'll be complicated to figure out what it's going to mean because the court basically said is that Congress can't require the states to go along with this expansion by threatening them with the loss of all their Medicaid money.

You know, if Arkansas doesn't want to expand its Medicaid program and get another $40, that Washington can't threaten Arkansas by saying, hey, if you don't do that, you're going to lose $200 or $300 million of Medicaid money. And so the decision takes away the requirement.

On the other hand, the federal government is going to pay something between 90 and 100 percent of the expansion. So I don't know for sure how this is going to work out, but I'd be very surprised if many states would say, well, no thank you. If the federal government's going to pay 100 percent of the expansion, I would assume most states will take the money.

CONAN: Let's bring another voice into the conversation. Joining us now is Richard Pildes, he's a constitutional law professor at New York University School of Law, he served as a law clerk for Justice Thurgood Marshall in 1984, and he joins us here at the Aspen Ideas Festival onstage in the Hotel Jerome. Thanks very much for being with us today.

RICHARD PILDES: And thanks for having me here, Neal.

CONAN: And the drama of this day, it's a little hard to overstate just how big a decision this is.

PILDES: I think that's right. This is the most dramatic decision from the Supreme Court on a piece of domestic policy legislation, probably since the New Deal, since about 1937. This is obviously one of the most controversial pieces of domestic legislation, as well, as a matter of policy and as a matter of constitutional law.

And the decision today was a phenomenal moment in U.S. Supreme Court history, surprising to many, not surprising I think to most constitutional law professors, who were generally of the view that the statute was constitutional, surprising in the way Chief Justice Roberts got there. And I would say this decision is going to elevate Chief Justice Roberts personally to a stature that probably already makes him one of the most significant chief justices of the last 40 years.

CONAN: At his confirmation hearings, he said it's my job to play the referee. And it's interesting to look at the language of his majority opinion today, where he said look, I'm not ruling on the wisdom of this policy or whether this is the right thing to do, my job is to say fair or foul, strike or ball, it's constitutional or it isn't.

PILDES: Well, what's particularly striking about his decision is that he accepted the conservative or libertarian critique of the mandate. So he joined five members of the court, made up a five-member majority to hold that Congress had acted unconstitutionally under the commerce power by trying to regulate people who were not engaged in commerce, who did not have insurance, were not actively participating in the market.

Now, if you thought he was doing that simply because he was hostile to the policy of the health care act, that would have been the end of the matter. But he then turned around and said no, on the other hand, this law can be upheld as a valid exercise of constitutional power under the taxing power that Congress has. So that's a very, very impressive, in a sense, feat of constitutional statesmanship on his part.

CONAN: David Savage, let's get back to you. One of the things that there was some speculation beforehand that if this was struck down on the basis that the "commerce clause" did not provide this kind of authority for Congress, that that would be a major decision. Does this ruling in that aspect change the way the court's going to go?

SAVAGE: Well, I assume maybe down the road. I suppose some conservative academics would say, you know, the silver lining here is that the court did sort of put a limit on Congress' power in the "commerce clause" to mandate the purchase of goods. And I assume also down the road, you know, Congress wouldn't do that again because the court has said it.

So I think probably in a constitutional-law-doctrine sense, you could say the court did indeed put some limits on Congress' power, but practically speaking, by upholding it this way, I think most people will think Congress, you know, came out of this ahead.

CONAN: Rick Pildes, would you agree?

PILDES: Well, I would agree with that. I think it's important to recognize that the health care act really was an unprecedented and novel form of national economic regulation. I think the critique of it in those terms was correct: It was novel and unprecedented.

By holding the statute unconstitutional as an exercise of the commerce power, the Supreme Court responded to the novelty and the unprecedented nature of this form of governmental power at the national level, but I don't think that that decision will have dramatic implications down the road because Congress has never tried to use national power in this way and is unlikely to probably try to do so in the future.

CONAN: David Savage, take us to the minority opinion, the dissent. What was the argument there, and how vehement was it?

SAVAGE: Pretty vehement for - Justice Kennedy read his opinion in the court, and as you know, in the - it's a rare day when there's a very big decision, and Justice Kennedy is in the dissent. You know, most of the people were sort of watching to see how Kennedy would go, thinking it would be outcome, that he would determine the outcome, and this is not so.

He seemed to buy all the conservative arguments. He seemed to - he said that this is a unconstitutional, unprecedented mandate, and we ought to strike it down as that. And then we also out to say this is - you know, Congress has never done this sort of thing using the tax power to force people to do something. So he would have thrown it out on the tax grounds, too.

And of course Justice Scalia and Justice Alito and Justice Thomas agreed with him. And it is important to say they would have thrown out the entire statute had they had one more vote.

CONAN: And there were any number of - we remember all these days of arguments before the Supreme Court. This was a series of, I gather, what, six different rulings.

SAVAGE: Well, let me see. There was a question about the anti-injunction act, whether they, of course, could rule on this. So they all agreed that yes, the court could rule on it. There was a separate decision on the Medicaid provision, and as we said, Roberts joined with the sort of conservative side in limiting the Medicaid power.

And then there was a question of whether the mandate was constitutional. And as we said, they upheld that on the five-to-four vote, so I'd say three main rulings.

CONAN: Three main rulings. Well, David Savage, we know you've got deadlines. We appreciate your time today, as always.

SAVAGE: Thanks, Neal.

CONAN: David Savage, who covers the Supreme Court for the Los Angeles Times and the Chicago Tribune, with us from his office in Washington. Rick Pildes, we're going to ask you to stay to answer any questions that people may have about the ruling. When we come back after a short break, we're going to also be talking about the politics.

Of course this is going to play into the presidential election come November, and NPR national political affairs correspondent Mara Liasson will join us. We'll also be talking with Julie Rovner, our health policy correspondent, about what happens now. If you've got questions about where we go from here, give us a call, 800-989-8255. Email Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.


CONAN: This is TALK OF THE NATION. I'm Neal Conan at the Aspen Ideas Festival. And we're talking about an important day at the United States Supreme Court as Chief Justice John Roberts sides with the more liberal justices and upholds President Obama's healthcare mandate.

The constitutional showdown wasn't decided on the basis of the "commerce clause," as many expected, it came down to the definition of tax. The court ruled the penalty for not buying insurance is effectively an increase in taxes, well within Congress' power to levy taxes.

If you have questions about where we go from here, give us a call, 800-989-8255. Email us, You can also join the conversation on our website. That's address is Our guest is Richard Pildes, he's a professor of constitutional law at New York University School Law, a former law clerk for Justice Thurgood Marshall. He's with us here in Aspen.

And joining us now from Studio 3A in Washington is NPR's national political correspondent Mara Liasson, and Mara, always good to have you with us. Mara, are you there?

MARA LIASSON, BYLINE: Yes, I'm here. Sorry, I was so busy chatting with Julie, I didn't have my headphones turned up.

CONAN: We'll get to Julie in just a minute, but I wanted to turn to you today and say that this is clearly one of the rulings that we've been waiting for to clarify the arguments that we're going to be having over the next four months.

LIASSON: That's right. John Roberts effectively said this law is no longer a legal issue, it's a political issue. Take it away, presidential candidates. And they did. And now the voters will decide. Mitt Romney said it very clearly, he said if you want to get rid of what he calls Obamacare, we have to get rid of Obama. And that is what this election is now being framed as. Healthcare is now going to play a much more prominent role than it did before.

Whether that's a good thing or bad thing for these candidates is still a little unclear. Mitt Romney wants to talk about the economy exclusively, but now he's going to have to talk about healthcare. And the president avoided, I think, what would have been a terrible, terrible defeat, to have his signature achievement thrown out in whole or in part.

So it's a boost for him but still a huge target for Romney and a way that he can energize his base.

CONAN: Speaking after this morning's decision at the White House, President Obama acknowledged the controversy, acknowledge the polling, which shows that this law is not especially popular, but noted that, well, it did have bipartisan support.

PRESIDENT BARACK OBAMA: Even though I knew it wouldn't be politically popular and resisted the idea when I ran for this office, we ultimately included a provision in the Affordable Care Act that people who can afford to buy health insurance should take the responsibility to do so. In fact, this idea has enjoyed support from members of both parties, including the current Republican nominee for president.

CONAN: And of course not support when it came down to a vote in Congress, not one Republican voted for it, but he's talking about Mitt Romney as the intellectual father of Obamacare.

LIASSON: That's right, and Romney has said in the past that he thought the mandate was constitutional, at least the one in Massachusetts. And Republicans are now saying they're going to run against Obamacare because it includes a tax. The mandate is no longer a mandate, it's a tax. Well, Democrats are shooting right back: OK, well, Romney raised the exact same kind of tax in Massachusetts.

So now you have a whole big, new argument that up until now was not front and center in the presidential campaign.

CONAN: Let's get a question from the audience here in ballroom of the Hotel Jerome. Go ahead, please.

CHERYL HEALSON: Dr. Cheryl Healson(ph) with Legacy. The United States is the only industrialized nation without universal health care, and a politician that tried to take it away in any other industrialized nation would be in deep trouble. Can you help explain the irony and explain what you think will happen in this country as we go forward, trying to get it, achieve it and retain it in this election cycle?

CONAN: Mara?

LIASSON: Well, that's a really good question. First of all, nothing's going to happen in this election cycle because nothing's going to pass Congress in this election cycle. But on July 11, you will have the House of Representatives vote to repeal the entire law. They voted to repeal it in the past, and Eric Cantor said today they're going to vote again on the 11th. It's not going to go anywhere in the United States Senate.

However, Mitt Romney has promised that he will repeal it on day one, and if he is elected, and the Republicans take the Senate, which is completely possible, he will have the votes to do it. Now you can say, well, the Democrats could filibuster him. But because this is now a tax, it seems like they only will need 50 votes to repeal it just as the Democrats passed it in the Senate, with 51 votes.

So in terms of this election cycle, if you include 2013, I think that the health law will be overturned if Romney is elected, and it will be maintained if President Obama is re-elected.

Now, one thing that Romney has talked about a little bit is that he will replace it with something else that controls costs, and he says that it will - he will make sure that people who have pre-existing conditions know they'll be able to be insured, and they will not lose their insurance. I think there he's talking about people who already have insurance, a kind of form of COBRA, where they can keep it, but not for people who have pre-existing conditions and want to get it. That, he hasn't been too detailed on.

CONAN: And Mara, we note that - again, the polling shows this is not popular. There's no way to guess, but could the Supreme Court decision in some way validate the president's law and change people's minds that, well, maybe this is a better thing than we thought?

LIASSON: That's a really good question, and I was just talking about that with Julie here. Up until now, the White House has said all along as soon people know what's in this law, as soon as we get some facts on the ground, implement some of these provisions, the law will become more popular. That never happened.

The universal coverage part of the law doesn't go into effect until 2014. So there's no way that they can demonstrate the law's - what they consider to be the law's positive effects between now and the presidential election day. But the question is: Does the Supreme Court still have enough standing in this society that the bipartisan imprimatur of the court, and this is John Roberts and the liberals, this wasn't just one of those five-four partisan decisions, will that change just enough swing voters' minds about the law? We won't know that for many weeks until we get some polling on this.

CONAN: Daniel Strauss(ph) is on the mic here at the Hotel Jerome.

DANIEL STRAUSS: This is a question for Professor Pildes: I was wondering if you could comment on the following. There's been little discussion about the highly - the word unprecedented has been used, but we haven't discussed the unprecedented procedure that was used actually to pass the health care bill, where the filibuster was circumvented by the Congress in order to get the bill passed. And I'd like to know your thoughts on that in terms of how our democracy works and the legitimacy of the bill and whether that should be a subject of discussion.

CONAN: He's talking about the legislative fast shuffle where it was ruled appropriate to use a procedure in the United States Senate that avoided the filibuster by talking about it as a tax but not really a tax.

PILDES: Yeah, so I think historically, many of the major pieces of American domestic policy legislation have been wrestled out of Congress through a variety of procedural mechanisms that bypass various gridlock points and veto points in the Congress.

For example if you think about Lyndon Johnson and the enactment of the 1964 Civil Rights Act - I'm in the middle of reading Robert Caro's wonderful third volume in his biography on Johnson - they bypassed committee chairs. They did all sorts of things to avoid some of the veto points in Congress.

And I think this is actually very typical behavior in American history when you have, you know, deeply controversial legislation, particularly when you have a Congress that is so polarized and so divided. And it's no mystery that legislative leaders, statesmen if you like the legislation, manipulators if you don't, use every trick in the book and every power at their disposal to try to move legislation through the political process. That's just in the nature of the American political system and in most political systems, I would say.

CONAN: And Mara, not likely to be much of a political issue, at least not that particular argument.

LIASSON: No, I don't think so, especially now that you have Republicans talking about using the same kind of filibuster-proof strategy to get rid of it.

CONAN: So let's bring in NPR health policy correspondent Julie Rovner, who's also there in Studio 3A. Julie, always good to have you on the program.

JULIE ROVNER, BYLINE: Always nice to be here.

CONAN: And as we look ahead, what happens next? The provisions of the law that are scheduled to go into effect will now continue to go into effect. It continues to roll out.

ROVNER: That's certainly the plan. And, you know, it's funny, a lot of the provisions that have already gone into effect, Mara was talking about how, you know, it's hard to get people to wrap their heads around the things that haven't happened, but the things that have happened, some of them have turned out to be extremely popular.

The administration now says that there's 3.1 million young adults under the age of 26 who have remained on their parents' health plans, that's something that the law provided. That has turned out to be extremely popular, so popular, in fact, that the Republicans got in a bit of an argument about whether, if the Supreme Court had struck down the whole law, whether they were going to have to act almost immediately to try to put that back.

The doughnut hole in prescription drug coverage for seniors that's gradually being closed under this law, that's pretty popular, although there are some seniors that don't quite understand that that's being closed under the provisions of this law.

So there are some things that have gone into effect that are popular. Obviously, the main parts of this law, the expansion of Medicaid, the exchanges where people will be able to go and shop for health insurance and the subsidies to help them pay for that insurance, those things don't happen until 2014. And now with the sort of limbo being lifted from this law, states that are going to have to do that are going to have to really, you know, get their act together and start working on these things.

CONAN: Just only 14 have started that so far. As you say, there's a lot of work yet to do on that. Let's get a caller in on the conversation. Bill is with us from South Bend, Indiana.

BILL: Yes. Thank you all. My question is about unintended consequences. I know there were penalties, I believe, $3,000 per employee for anyone - any company not offering health insurance, and I know they would lose their tax exemption. My concern is what is going to prevent employers en masse January 1, 2014, from saying we're going to drop health insurance for everyone? You can all go to the exchanges. And I'll take my comments off the air. Thank you much.

CONAN: All right. Bill, thanks very much for the question. And, Julie, that's been one of the questions all along.

ROVNER: It has. And, you know, there have been a lot of - there has been a lot of speculation about this, a lot of polling done of employers. Obviously, as the caller points out, there are penalties. It would be way expensive for a lot of employers to stop offering insurance. And the penalty applies if you stop offering insurance and someone goes into the exchange and gets a subsidy. That's where the penalty takes place because then basically taxpayers are now footing the bill for someone that the employer used to be covering.

But basically, I think a lot of employers are going to continue to offer health insurance because, as I am told by most of the employer groups, it's good for, you know, competitive reasons, good for hiring workers. Employers want to have a healthy workforce. It's the same reason that they've been offering health insurance all these years, anyway. Remember, it's not required now, and yet, most employers, who can afford to, do it. It's currently voluntary, and yet, that's the norm at least for large employers.

Small employers tend not to do it because they can't afford it - the idea of this law and these exchanges that it will make it more affordable for the small employers to be able to do it.

CONAN: Yet, Mara, that point that Julie just made, voluntary, there's the aspect of this law that it is not voluntary that you are now required by the government to either go get yourself some health insurance, either through your company or through an individual policy or you will be facing a penalty - well, maybe a reduction in your tax return. That's about it. But nevertheless, this is a powerful argument in American politics.

LIASSON: Yeah. It's a powerful argument, and it certainly has been a powerful argument up until now. And it's really interesting that this is an argument that the conservatives who designed the mandate saw it as a personal responsibility mandate or an anti-free rider tax. And the president never wanted to kind of embrace that argument at all. But now, that the Supreme Court has said the mandate itself is not constitutional but a tax is, he could try to argue if he wants to that nobody is being forced to have insurance.

They're merely going to be taxed if they don't have it. But I do think the whole question of whether employers dump large numbers of people onto the individual market, how many people would rather pay the fee than get insurance, those are all questions that we're - that are going to be answered as this thing goes forward and gets implemented. But Republicans do feel that that the mandate was a powerful argument for them, and a tax is just as powerful.

And you have to think that they're onto something because the White House tied itself up in knots to not call this a tax. They could have called it a tax all along. They could have called it the anti-free rider tax and maybe avoided some of the problems in the courts. But they didn't want to because they didn't think this thing could pass if it was called a tax.

CONAN: Mara Liasson, we know you got other responsibilities later today, so we'll let you go. Thanks very much for your time.

LIASSON: Thank you.

CONAN: NPR's Mara Liasson joining us from Studio 3A. We're talking about today's dramatic decision by the United States Supreme Court that upheld almost all of President Obama's health care law. You're listening to TALK OF THE NATION from NPR News. And let me just reintroduce our guests: In Studio 3A in Washington, NPR health policy correspondent Julie Rovner; with us here in Aspen is Richard Pildes, a professor of constitutional law at New York University School of Law. And we have a question at the microphone here at the Hotel Jerome.

ANA CHAUDARY: Hi. Thanks, Neal. My name is Ana Chaudary. I'm with The Islamic Monthly. My question is even though the health care reform is now safe from a constitutional perspective, there are still major issues, and I know the previous guest was just touching upon that with relation to controlling cost. My question is what can now be done after the ruling to bring the cost of health care down which is now consuming more and more of the average American income?

CONAN: And, Julie Rovner, that's clearly going to be on the table when Congress comes back again, not between now and Election Day, but after that, because there's already talk of having to scale back both Medicaid and Medicare.

ROVNER: Yes. Well, obviously, you know, everyone, even the people who supported this bill thought that it went pretty lightly on the cost-control part of health care. No one thinks that it was - it did enough, and partly, it's because no one really knows how to do that, how to really slow health care spending without actually taking health care away from people. I think most people's perception of this law is that it does a better job at expanding coverage than it does at controlling of cost.

But nobody has a really, you know, good idea about how to do that. Clearly, there will be more efforts, I think, as people go forward, but, you know, part of the problem is that there is such partisan gridlock on this subject now. It has become such an issue in the campaign that Democrats and Republicans really want to go in such opposite directions right now that it's hard to imagine them coming together to agree on anything when it comes to health care.

CONAN: And, Rick Pildes, the Ryan plan embraced by candidate Mitt Romney does call for big cuts in health coverage in various parts, and that is voted again and again by the Republican majority. How does this decision today change that argument?

PILDES: Well, I think the big uncertainty about today's decision is going to be how the court's ruling that the Medicaid expansion was unconstitutional in part is going to affect the states. So this is actually a very important part of the case that we've not talked about too much yet. One of the major ways this statute expanded health care coverage to the uninsured was with a massive expansion of Medicaid. And the program was nominally voluntary. States didn't have to accept this expansion of Medicaid.

The federal government was going to provide 100 percent of the money initially. But the statute was written in a way that said if you don't take our money and don't expand Medicaid, you risk having all your previous Medicaid money no longer available to you. And in a seven-to-two decision - this is very important - the Supreme Court said that's unconstitutional. So in essence, the Supreme Court said the federal government cannot pull the rug out from under the states.

It really has to make this Medicaid expansion voluntary. And so now, we're going to have to see how many states of the 26 that opposed this, how many of those states accept the expansion of Medicaid? And if they don't, what happens to those people? How are they're going to be insured?

CONAN: After the Supreme Court's decision to uphold President Obama's health care law, we're talking about where we go from here and what today's decision will mean for you. Get in on the conversation. 800-989-8255. Email us: Stay with us. We'll be back in a moment. It's the TALK OF THE NATION from NPR News. I'm Neal Conan in Aspen.

Right now, we're talking about today's top story: What's next after the Supreme Court upholds the great majority of President Obama's health care law. If you have questions about where we go from here, give us a call, 800-989-8255. Email: You can also join the conversation on our website. That address is Our guests are health policy correspondent Julie Rovner back in Studio 3A; and here in Aspen, Richard Pildes, professor of constitutional law at New York University's School of Law. Let's get a question from the microphone here in Aspen.

BRENDA JEWITT: Hi. Brenda Jewitt(ph). Today's decision is a positive decision for the estimated 50 million uninsured Americans. Who are the losers today?

CONAN: Julie Rovner?


ROVNER: Well, you know, there are those who were kind of hoping, I think, for the - on the - for the president that the actual - that the individual mandate would get struck down because it has been so unpopular. It was the most unpopular portion of the law, although there - then it was considered to be kind of a lose-lose for the president. If the mandate got struck down, that would certainly be a loss also because it was his signature domestic achievement.

So I think there are those who consider it to be less of a loss to have the law upheld than to have the mandate struck down, but now, obviously, the president is going into this campaign having what some people consider a policy albatross around his neck, even though his law has been upheld. The insurance industry is still - even though they get all of these new customers with this law is still unhappy about aspects of the law. They worry that this penalty or now if you want to call it a tax - since that's what the Supreme Court is calling it - the tax is too small to encourage enough people to actually buy insurance, and that people will be able to basically buy insurance.

Now that they have to sell to people with preexisting conditions, they'll be able to buy insurance at the last-minute when they need it. So there are concerns that that penalty really needs to be either larger or people will have to - people - there needs to be more encouragement for people to buy insurance when they're healthy rather than wait until they get sick. So there may be if not losers they're worried that that more needs to be done to encourage people to buy insurance when they're healthy.

So I wouldn't exactly call them losers, but I think there's still concern on that part. So I don't know that we would have necessarily losers, but those are people who perhaps didn't win as much as they could have.

CONAN: Rick Pildes?

PILDES: Well, I think it's a question of who the uninsured are. It's actually much more complicated than the way it's often talked about. So there are people who are too poor to be able to afford health insurance. And the Medicaid expansion is going to cover them. But one of the complaints about the mandate or the tax was that there's a very large group of young healthy people who do not want to spend their money on health insurance at this stage of their lives who are being brought into this system precisely for the purpose of subsidizing the people who have preexisting conditions and who would otherwise face very high premiums who are now being brought in to the system.

So it's actually very tricky to talk about who the uninsured are, but certainly, among the losers would be the people who would say I don't want to spend my money on health insurance right now. I'll buy it down the road when I get older. I don't want to pay to reduce the premiums of other people, which is part of the whole point of the mandate or the tax, after all.

CONAN: Let's go next to Joseph. Joseph with us on the line from Sandy Creek in New York.

JOSEPH: Hi, Neal. First-time caller, longtime listener. I'm kind of confused about the messaging regarding the health care law in the sense that - and his response - Mitt Romney said that 20 million people would be forced to abandon the insurance that they have now and buy the individual mandate, whereas the president - what I've heard for a long time - says that nobody will be forced out of their own insurance. So I'm wondering which is it?

CONAN: Julie, is this the fear that a lot of those millions that Mitt Romney is talking about will be dropped by their employers?

ROVNER: Yes. That's mostly what that is. And again, there have been various polls and surveys about what will happen. Certainly, people are going to - and this would happen even in the absence of the law. Policies change. Employers offer different types of benefits. There will be different kinds of benefits required, and I think that's mostly what the Republicans are talking about that people will have to have different insurance. In most cases, it will be richer insurance packages, and in some cases, that will cost more.

These people will have better benefits, but they'll have to pay more for them. And that is going to make some people complain, but there will also be people who'll have - who are currently underinsured, who don't realize it, who don't have benefits that they think they might have, who will suddenly be - have really full coverage. So that they might actually be better off and never realize they weren't as well off as they were. So there will be some people who will get better coverage, but there will be some people who will end up paying some more because of this requirement for minimum benefits.

And if I could go back for a second among the losers. I should have mentioned this before. There is a quirk in the Medicaid ruling. The people - if the states actually decide not to participate in the Medicaid expansion, those low-income people are not actually eligible to go into the exchanges and get subsidized coverage because of the way the law was put together. And because that Medicaid expansion was thought to be mandatory, you have to be of a certain income in order to get into the exchanges. So if the state decides not to avail itself of that essentially free federal money, those would be big losers because those would be low-income people who would neither have access to Medicaid nor have access to the subsidized coverage.

CONAN: Joseph, what about you? Do you have coverage?

JOSEPH: No, I do not. I'm part-time janitor.

CONAN: And are you going to buy the coverage if that - if it comes to that?

JOSEPH: Yes, I would. I mean, I feel it's my duty as a patriotic citizen. I mean, I'm 27 years old, and you guys have been talking about how young people would be forced into paying the (unintelligible) the people with preexisting conditions and things like that. But as I get older, those younger people will be helping me. So I just feel it's my duty to help them. Somebody has got to start the system going.

CONAN: All right, Joseph. Thanks.


CONAN: Well, a round of applause from the people here in the auditorium at Hotel Jerome. Thanks very much for the call, Joseph.

JOSEPH: Yeah, thank you, everyone. Have a wonderful day.


CONAN: Let's see if we can go next to - another question from the audience here in the Hotel Jerome.

STUART MARKOWITZ: This is Dr. Stuart Markowitz(ph). We have a broken health care system where physicians are incentivized to do lots of procedures for profit to protect themselves against malpractice. How do we go from this stage now to the next stage of eliminating that process and allowing physicians to be fairly paid on salary to take away that incentive? I guess, Julie, I'm directing this to you.

CONAN: Yeah. Julie, this law certainly does not eliminate all problems in health care.

ROVNER: No. But, in fact, there are a number of things in the law that do address that very question, that try to change, that try at least, you know, re-steer the huge shift of health care, if you will, turn it in a little bit of a direction rather than paying for volume, as they like to say, towards paying for value, things, you know, like they call them accountable care organizations that would help doctors and hospitals sort of band together to try and improve outcomes rather than just paying piecemeal, and create medical homes where patients go to have a place to turn where they can get all of the care that they need. And someone would basically be in charge of knowing everything that happens to them rather than going to one doctor for one thing and another doctor for another thing and another doctor for something else.

These are all ways of not only improving care, but lowering cost and improving value and, hopefully, making everybody's lives better, the patients and the doctors. I've spoken to doctors who've been in some of these systems that actually like them much better. They get to spend less time - they have more time with their patients, less time doing paperwork and get, you know, a lot more satisfaction out of their jobs than they used to. And I think that's the goal. So that can be win, win, win, but it's very difficult to change.

I think the doctor is absolutely right. The system has grown up in such a way that it rewards people who do more and charge more, and that's just not a very viable way to continue to run the health care system.

CONAN: Thanks very much for the question. Here's an email question. This is from Jim: Will this be the new Roe v. Wade, with states passing laws to chip away at the law and make it irrelevant? Julie Rovner, you mentioned that some of the states - the 26 states that brought this suit, they may not participate in the Medicaid expansion.

I don't think this going to be quite like abortion. I don't think that there's going to be a chance for states to pick and choose off little pieces of it. The way it works is if states don't - choose not to set up a health exchange, for example, then the federal government will come in and do it for them. So I think it will look pretty much the same over the 50 states.

ROVNER: The Medicaid expansion is the one place where states will, obviously, have a choice of whether or not to do it. But I've been talking to some experts today, and they're - they tend to think that almost every state will almost certainly do this because the federal government is paying almost the entire bill. So there'd be almost no reason for a state to turn down this money.

CONAN: Let's see if we can go next to Ted, and Ted is on the line with us from Prescott, Arizona.

TED: Yes. Good morning, Neal.

CONAN: Good morning.

TED: I appreciate very much the incisive comments of your guests, but I have a question. I'm a senior and I'm a working senior, by the way. I have a question about the Medicare Advantage plans and how this Health Care Act will affect those plans. I'm getting the feeling that they're going to be done away with, and that I may have to go out and buy the insurance. I would...

CONAN: To supplement your Medicare, is what you're saying?

TED: Yes, sir.

CONAN: OK. Julie?

ROVNER: They're not going to be done away with. They are going to be - they're - basically, their overfunding is going to be cut back into 2003 when Congress passed the Medicare Prescription Drug law. The Republican Congress very - boosts its funding for these plans very much in hopes that more people would sign up for them. And they were basically paid more than was being paid for regular Medicare and as a result, they were able to offer extremely rich benefits, often more rich than people were able to get who were just on regular Medicare.

And in this law, in the Affordable Care Act, that was scaled back somewhat. So there will be a reduction in the, basically, the overpayments for Medicare Advantage, but they're not being done away with. They are still quite popular. There are still a number of people. I think it's close to 20 million people in the Medicare Advantage plan. So even though the costs are being lowered somewhat, there are still plenty of Medicare Advantage plans for people to join and get those benefits from.

CONAN: Thank very much...

TED: Does that mean - excuse me?

CONAN: Go ahead.

TED: Yes. Does that mean, however, that the premium costs may go up?

ROVNER: In some cases, it could. Or in some cases it could mean there could be fewer extra benefits.

CONAN: We're talking with NPR health policy correspondent, Julie Rovner. Also with us is Rick Pildes, a constitutional law professor at NYU Law School. A dramatic day at the United States Supreme Court, an important day in constitutional history as the Supreme Court upholds President Obama's health care law. It's also an important day in American politics. You're listening to TALK OF THE NATION from NPR News.

Let's go next to Meg, and Meg on the line with us from New York.

MEG: Hi there. I'm Meg Fitzgerald(ph). I'm a doctor of health policy student at New York Medical College and also a Fortune 17 health care executive. I'll lead my company of the call because we were neither a winner or a loser today in the health care stock. My question is, no one wants to have the difficult discussion about end-of-life care and some pieces of health care where it's just wasteful and expensive. And I know a few panelists have brought up Europe, and this is the right thing to do and this is what Europe does. But you know what? Europe doesn't do this. They actually ration. And, yeah, I said it, ration. So to Julie and the legal panels, when - well, what will it take for both sides to actually have this discussion? Is this a country where you just can't talk about rationing?

CONAN: Julie?


ROVNER: I think, clearly, this is a country where we can't talk about rationing yet. You know, just look at the fight that there was about rationing when we didn't even have it back in the summer of 2009 when all that was going to happen in the original health care bill was that there were going to - there was going to be a payment for doctors on Medicare to have a discussion with patients about what they're end-of-life wishes would be. And that suddenly became this huge conflagration about death panels and rationing. I mean, that was really not rationing, and yet that's what it turned into. You know, then now we have...

MEG: And it's needed. And, unfortunately, it's really the best thing that you can do, to talk about if you're 89 years old and you need chemotherapy for $200,000 versus insuring five 26 years olds, no one wants to have the discussion. And by the way, Julie, the reason the bill is so popular for these 26-and-unders is that it's now the highest use of ADD drugs since the bill allowed people under 26 to be covered. It's up like five times. So I think some of this stuff is having unintended consequences and not talking about the real issue at hand.

CONAN: Well, Meg, let me put it this way, are you planning to run for Congress and this is your platform?


MEG: Could you imagine? I'm just - you know what? I'm so pro-public health and so incredibly happy that people are covered. It's solidarity. It's the right thing to do. It's what they do around the world. It's what humane, ethical societies do. But they also need to talk about cost. And I just don't know why it's so difficult to sit down and have those types of discussions and somehow be called inhumane or unethical and that's really what it is.

And I think the doctor in the audience made the comment about, you know, physicians not being paid for care and being paid for procedure, and they want to be paid for care. And there's new programs like Pathways and evidenced-based medicine that does that. But, man, if you can't get a little bit further, suddenly, it's a death panel, which it never was. And, yeah, I said it. So there you go.

CONAN: Yeah. OK.

MEG: Yeah, I guess I'll run for Congress if you want to - I'm happy to...


CONAN: Rick Pildes, this is an electric issue. This is something that is going to be at the center of discussions from now on as you look to contain budgetary costs down the road.

PILDES: And there are places in the United States where this discussion has begun to take place. Oregon, for example, is a well-known illustration of this. They created a public process to have input to decide how Oregon's health care dollars ought to be spent. And it led to a sort of a ranking of quality-of-life issues, the illnesses. That is happening at the state level. It probably has to happen at the state level in a number of places before we're ready for a discussion at the national level about those issues. But we are beginning to have that discussion in some places.

CONAN: Rick Pildes, thanks very much for being with us today.

PILDES: Thank you, Neal.

CONAN: Richard Pildes, professor of constitutional law at New York University's School of Law. He joined us here at the Aspen Ideas Festival at the Hotel Jerome. And, Julie Rovner, always good to have you on the program.

ROVNER: Always good to be here.

CONAN: More on this decision, of course, later today on NPR News and ALL THINGS CONSIDERED. All this week, we've been guests at the Aspen Institute and the Aspen Ideas Festival. Tomorrow, TALK OF THE NATION: SCIENCE FRIDAY. Ira Flatow will be here. I'll be back in Studio 3A on Monday. Transcript provided by NPR, Copyright National Public Radio.