What journalists need to know about this week's Supreme Court Health Care Ruling

Just about every citizen and business will be affected by the Supreme Court’s decision on the Affordable Care Act, which will likely be made public Thursday, when the Court returns to announce the rest of this session's rulings. The health care ruling, which may have been reached in March, will be posted on the Supreme Court website and liveblogged starting at 9 a.m. ET by SCOTUSblog. The decision will immediately be a national story, a legal story, a political story, a business story, a health care story and a local story. Let’s make sure you are ready to cover it.

The public has said that journalists spend too much time covering the politics of the story and not enough time and space covering what the health care plan does and how it affects them. Let’s fix that.

The Washington Post has an easy-to-use tool that shows how the Act would affect you.

The three main issues before the Court

The Individual Mandate

The Affordable Health Care Act requires nearly everyone to have coverage by 2014 or pay a fine.

The Court has to decide if Congress has the Constitutional authority to require that. The question is about whether the Constitution, via the Commerce Clause (in Article 1, Section 8, Clause 3) gives the federal government the power to force Americans to buy at least minimally adequate health insurance coverage from private insurance companies.

The Cornell University Law School says:

“Congress has often used the Commerce Clause to justify exercising legislative power over the activities of states and their citizens, leading to significant and ongoing controversy regarding the balance of power between the federal government and the states.

"The Commerce Clause has historically been viewed as both a grant of congressional authority and as a restriction on states’ powers to regulate."

Some people do not have to have coverage under the individual mandate including:

  • Those who get an exemption for religious reasons
  • People in jail or prison
  • Undocumented immigrants (who would not be covered by the new plan)
  • People who would have to pay more than 8 percent of their household income to get coverage
  • People who don’t earn enough to file a federal tax return and
  • Members of Indian tribes

PBS reported:

“In the final analysis, the Urban Institute researchers concluded, 18.2 million Americans -- 6 percent of the total population -- will be required to newly purchase coverage or face a penalty. Of that number, 10.9 million will be eligible to receive federal subsidies to help pay for coverage. Just 7.3 million people -- 2 percent of the total population -- will have to newly buy coverage under the ACA and won't receive any federal assistance to pay for it.”

If the Supreme Court rejects the Individual Mandate part of the Act, but keeps the other parts in place, the Congressional Budget Office estimates that 16 million fewer people would gain insurance under the ACA, and insurance premiums could quickly rise 15 percent. The price increase is expected because lots of sick people would have to be covered, but there is no force making healthy people get coverage, so insurance companies are taking on a lot more risk without more healthy people to offset that risk.

Title 1 (the insurance reform portion of the Act)

The White House explains that this section of the Act "reduces what families will have to pay for health care by capping out-of-pocket expenses and requiring preventive care to be fully covered without any out-of-pocket expense. For Americans with insurance coverage who like what they have, they can keep it."

If the Court struck down the Individual Mandate, but kept Title 1 in place, insurance companies say they would quickly raise rates.  Why? They would not have the flood of new insurance buyers but would be required to cover anybody who wanted insurance, as stated above. And, the reform part of the Act caps what they can charge.

The Kaiser Family Foundation says that while insurance prices would certainly rise sharply under this scenario, it does not necessarily mean the whole health insurance system would collapse. For example, in places like New Jersey, New York and Washington, where the states do not allow insurance companies to turn down patients with pre-existing conditions, insurance rates spiked.

The White House says the Title 1 section of the Act imposes big changes on the health insurance industry. The White House website lays out the changes:

  • New Affordable Choices:
    • “Uninsured Americans with pre-existing conditions will finally have the choice of quality, affordable insurance through a new insurance pool;”
    • “Small business owners will be eligible for billions in tax credits to help offer insurance coverage to employees;”
    • “New plans will have to offer preventive care and immunizations at no cost;”
    • “New plans and certain existing plans that offer dependent coverage will have to cover an enrollee’s dependent children until age 26;”
    • “A re-insurance program for employers that offer health insurance to their early retirees will save as much as $1,200 for every family enrolled.”
  • More Power for Consumers:
    • “A new website to help consumers  compare different insurance coverage options along with state-by-state health care consumer assistance and ombudsman for any of their health insurance questions;”
    • “A new independent appeals process for new plans so consumers and patients can appeal insurance company decisions.”
  • Insurance Company Accountability:
    • “Prohibits new plans and existing group health plans from denying coverage for children because of a pre-existing medical condition;”
    • “Review of requested insurance premium increases; health insurers with a pattern of excessive rate increases can be blocked from selling through new insurance exchanges;”
    • “Remove arbitrary lifetime limits on coverage in all plans, and remove restrictive annual limits on benefits in all new plans and existing group health plans so people know that all of the care they need will be paid for;”
    • “Prevent insurance companies from dropping insurance coverage when a person gets sick and needs it most.”

Title 2 (Public Programs, including Medicaid expansion):

The poorest Americans would benefit most from this section of the Act. If the Supreme Court allows it, starting on January 1, 2014, all low-income, individuals who are not disabled and not elderly, will be eligible for Medicaid.

To be eligible you would earn less than $29,000 for a family of four. Because so many new people would be added to Medicaid, the Federal Government will support states by providing 100 percent of the cost of newly eligible people between 2014 and 2016.

That support will be lower in later years but will still be 90 percent in 2019.

Some states, including California, Connecticut, Colorado, Minnesota, Missouri, New Jersey and Washington went ahead and expanded their Medicaid programs without waiting for the federal ruling.

Republicans Oppose “Obamacare”

Republicans say if the Court does not repeal the Affordable Care Act, then they will.

Republicans attack the plan on five main fronts claiming it:

  1. “Increases Health Care Costs”
  2. “Causes Insurance Premiums To Rise”
  3. “Hurts Quality Of Health Care “
  4. “Adds Nearly $570 Billion In Tax Hikes’’
  5. “Adds Over $500 Billion To The Debt”

PolitiFact tracked some of the claims and counter-claims around health care.

These are some recent rulings by PolitiFact. A full listing is here: http://www.politifact.com/search/?q=affordable+care+act

What Might Happen

The Supreme Court heard more than five hours of oral arguments in March. There is a good chance the Court will uphold parts of the Act while tossing out other parts.

All sides are preparing multiple responses to release fast when the opinion is issued. Then again, multiple Justices may write opinions, so it could take a little while to sort out what the Court is saying.

Various experts, including Princeton Economics Professor Uwe Reinhardt, suggest five possible rulings:

  1. “The Affordable Care Act is upheld as constitutional in all of its provisions.”
  2. “Only the individual mandate is struck down, and it is deemed severable from the rest of the act.”
  3. “Title 1 (Insurance Reform) of the act is struck down, but the rest of the act is upheld.”
  4. “Both Titles 1 and 2 (Public Programs, including the expansion of Medicaid) are struck down, but the rest of the act is upheld.”
  5. “The entire Affordable Care Act is struck down, on the grounds that the clause covering the individual mandate, deemed by the justices to be not authorized by the Commerce Clause, is deemed not severable from the rest of the bill.”

The Public Pulse

Take a look at this tracking poll that you can sort by political party, age, gender, income, race and insurance status. After all that has been written about health care reform, one in five Americans still do not know how they feel about it. This ruling will give journalists an opportunity to raise awareness beyond the political heat the decision will generate.

In the hours after the Court rules, journalists will be flooded with claims about how the system will collapse, the democracy will collapse, the nation will go broke. You need reliable data. Here are some sources to help you:


I am always surprised by how many journalists don't know the difference between Medicare and Medicaid. The Court's decision will decide whether Medicaid will be expanded to cover 17 million more people (62 million Americans are covered by Medicaid now).

Medicare is the program that you pay into all your working life and for which you generally enroll when you turn 65. Medicaid is coverage for the poor. Medicaid is jointly funded by states and the federal government. Medicaid represents about one-sixth of total health care spending in the United States. Medicaid is vital to the elderly and disabled, which make up the majority of those covered. Kaiser says Medicaid is the third largest domestic program in the federal budget.

The federal government pays about 57 percent of Medicaid costs but this program is a major expense for states.

State-by-State changes

No matter what the Court rules, states will have to respond. They will either have to help pick up more Medicaid signups or, as the Association of Health Care Journalists points out, "If the Supreme Court strikes key parts – but not all – of the 2010 health law, the best chances of fixing the gaps might come from the states."

The Health Care Journalists website continues:

"The state responses may vary widely, meaning the state health insurance markets, prices and coverage rates could look different in, say, Vermont than in Texas. States can pass mandates, as Massachusetts already has. But imposing a mandate even in a liberal state is politically difficult. Many polls have found that people don’t like the mandate and it’s quite likely that a Supreme Court ruling will further taint it with the public. Many, if not most, people will not understand why it may be unconstitutional for the federal government to impose a mandate but OK for a state to do so. And states can implement a variety of 'Plan B' options – all those carrots and sticks, incentives and tax breaks and deadlines and opt-outs - that would also be on the federal menu."

The story of health care coverage gets more complicated when you factor in how states influence coverage laws. Here is a collection of how states are leaning, acting or have acted on health care reform laws.

Pay special attention to this if your coverage area extends beyond a single state border.

Dental Coverage

So much coverage has focused on health care generally, but there is another story worth considering, the huge gap in dental coverage.

One in four adults have untreated dental decay. The number is higher among seniors.

Kaiser says tooth decay is the most chronic illness among school children (one in four have it). Medicaid covers dental care for children, but states have different rules for adults. Most states have some Medicaid dental benefits, but the benefits are vulnerable to budget cuts and some programs restrict emergency use of dental care.

Check the percentage of the adults in your state who have have lost all natural teeth.

Local Hospitals and Medical Schools

Republicans have argued that adding millions of currently uninsured Americans to coverage will make it harder for everyone to get health care. The argument is that people who cannot get care now will jam clinics, doctors offices, hospitals and ERs.

The GOP also points to a Wall Street Journal article saying wider coverage will mean a deeper doctor shortage. The story says, "Experts warn there won't be enough doctors to treat the millions of people newly insured under the law. At current graduation and training rates, the nation could face a shortage of as many as 150,000 doctors in the next 15 years, according to the Association of American Medical Colleges."


Businesses, especially smaller businesses with lower paid workers have lots of skin in the game when it comes to the Supreme Court's ruling.

Any health care reform that covers more people will cost more money. Everyone agrees to that, it seems. The question is how much it would also save in suffering, lost work, chronic illness, early death or disability.

Employers absorb some costs of the plan. As The New York Times reported in 2010, "Employers are discovering another provision that got much less attention. If a company offers coverage but requires any full-time employees to pay premiums that amount to more than 9.5 percent of their household income, the coverage is deemed unaffordable, and the employer may have to pay a penalty." Keep in mind that employers with fewer than 50 full-time employees are exempt from the penalties.

The Times story clearly explains why employers feel they are in the crosshairs of the Affordable Care Act. Employers have no real way of knowing a family's household income, so there is no certain way to know if the plan they offer tops the 9.5 percent limit.

The Times piece said:

"An employer offering unaffordable coverage is subject to a penalty of $3,000 a year for each full-time employee who gets government assistance to buy insurance in an exchange. The maximum penalty is $2,000 times the total number of full-time employees in excess of 30.

"Andy R. Anderson, an expert on employee benefits at the law firm Morgan Lewis, said, 'A lot of employers, particularly those with low-wage work forces, will run into difficulty with the affordability requirement.' "

This Kaiser Employer Health Benefits Survey provides annual details on "trends in employer-sponsored health coverage, including premiums, employee contributions, cost-sharing provisions, and other relevant information."

Health Insurance Stats

The U.S. Census Bureau collects data on health insurance coverage that can get you really local really fast. The Census can give you data for all 50 states, the District of Columbia, Puerto Rico, every congressional district and all counties, places and metropolitan areas with populations of 65,000 or more.

The Census Bureau says:

  • "In 2010, the percentage of people without health insurance, 16.3 percent, was not statistically different from the rate in 2009. The number of uninsured people increased to 49.9 million in 2010 from 49.0 million in 2009."
  • "The percentage of people with health insurance in 2010 was not statistically different from 2009, while the number of insured increased to 256.2 million in 2010 from 255.3 million in 2009."
  • "The percentage of people covered by private health insurance decreased in 2010 to 64.0 percent, while the number of people covered by private health insurance was not statistically different from 2009, at 195.9 million. The percentage of people covered by private health insurance has been decreasing since 2001."
  • "The percentage and number of people covered by government health insurance increased to 31.0 percent and 95.0 million in 2010 from 30.6 percent and 93.2 million in 2009."
  • "The percentage of people covered by employment-based health insurance decreased to 55.3 percent in 2010 from 56.1 percent in 2009. The number of people covered by employment-based health insurance decreased to 169.3 million from 170.8 million."
  • "The percentage and number of people covered by Medicaid in 2010, 15.9 percent and 48.6 million, were not statistically different from 2009 estimates. The percentage and number of people covered by Medicare increased in 2010 to 14.5 percent and 44.3 million."
  • "In 2010, 9.8 percent of children under age 18 (7.3 million) were without health insurance, not statistically different from the 2009 estimates. The uninsured rate for children in poverty (15.4 percent) was greater than the rate for all children (9.8 percent)."
  • "The rate and number of uninsured for non-Hispanic Whites in 2010 were 11.7 percent and 23.1 million, not statistically different from 2009. The uninsured rate and the number of uninsured Blacks were 20.8 percent and 8.1 million, not statistically different from 2009."
  • "The percentage of uninsured Hispanics decreased to 30.7 percent in 2010 from 31.6 percent in 2009. The number of uninsured Hispanics in 2010 (15.3 million) was not statistically different from 2009."
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    Al Tompkins

    Al Tompkins is The Poynter Institute’s senior faculty for broadcasting and online. He has taught thousands of journalists, journalism students and educators in newsrooms around the world.


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