Defending ‘Obamacare’ In and Out of Court

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Wendell Potter (Photo credit: Robin Holland)

Today, the Supreme Court will begin hearing oral arguments regarding the constitutionality of the Patient Protection and Affordable Care Act, a.k.a. “Obamacare.” At issue: the requirement that all Americans buy health insurance if they’re not eligible for a public plan like Medicare or Medicaid. At stake: the promise of near-universal coverage, and, perhaps, the election.

We checked in with Wendell Potter — once head of communications for health insurance giant Cigna, now an outspoken critic of the industry — to get his thoughts on the case.

Lauren Feeney: What’s at stake when the Supreme Court looks at the constitutionality of the new health care law?

Wendell Potter: If the Supreme Court declares the entire act unconstitutional, or even just the provision that requires us all to buy insurance by 2014, we’ll be pretty much back to square one — with 50 million Americans uninsured.

Feeney: The entire act? I thought the case was specifically about the mandate requiring everyone to have insurance.

Potter: In their haste to get the law passed at the 11th hour, the Senate did not include a severability clause. So, theoretically, the Supreme Court could say if part of the bill is declared unconstitutional, all of it is declared unconstitutional.

In fact, that’s what the insurance industry is saying in the amicus brief they filed with the Court: that if the individual mandate is deemed to be a violation of the commerce clause, then the entire act should be struck down. Their rationale is that if you don’t require everyone to buy coverage, but you still outlaw some of the most egregious practices that the health insurance industry has been guilty of for many years, then their business model won’t be sustainable even in the short term.

Feeney: Didn’t the health insurance industry support the act?

Potter: The industry was supportive of the act because of the individual mandate. They don’t want to be told that they have to accept all people who apply for insurance, that they can no longer drop people from coverage when they become sick, or that they have to spend at least 80 percent of their premium dollars on care without at the same time having the requirement that all of us buy coverage. If you don’t have that provision, they’ll have to provide coverage to the sickest people but they healthiest may opt out, so their profits will begin to drop.

Their hope is that the law will be upheld, and that they can influence the elections — because their real objective is to keep the individual mandate intact but get their friends in Congress to weaken or strip out the consumer protections.

Feeney: What is the industry doing to influence Congress, the elections, even the courts?

Potter: They spent an enormous amount of money to influence the debate on health care reform, and goal number one for them was to make sure there was an individual mandate in the bill. The second goal was to make sure there was not a public option. They got both. They were not able to keep many of the consumer protections from winding up in the bill, but they got their two main objectives.

Of course now with Citizens United they’ll be able to spend a lot of money trying to influence elections, and they will do that by helping to finance a lot of issues campaigns through super PACs. Last year, the health care industry, through its trade association, America’s Health Insurance Plans, funnelled almost $86 million to the Chamber of Commerce to finance the Chamber’s advertising campaign to influence the health care reform debate. They have a lot of money, and they will deploy that money in different ways, some in ways that really can’t be traced.

And what they’re doing now is, they filed this brief with the Supreme Court and I think made it clear to the justices, particularly the conservative justices, that the individual mandate is necessary, and that originally it was a conservative idea. It came straight from the Heritage Foundation.

Feeney: What’s your prediction for the court’s decision?

Potter: I think the court will uphold the constitutionality of the law. Of course my opinion is worth no more than anybody else’s. There’s a lot of speculation.

I think the court will hold up the entire act; it will shift then to legislative battles. I do not think that if the Congress is controlled by Republicans — even if they win the White House — we’ll see Obamacare repealed. The insurance industry needs it and they’ll make it very clear to lawmakers once they’re elected: Keep your hands off my individual mandate.

Feeney: The RNC launched an anti-health care act campaign last week, pegged to the two-year anniversary of the law and the upcoming Supreme Court case. Can I read you a few of the talking points of the campaign and get your thoughts on them?

This is from an open memo from the RNC’s Political Director, Rick Wiley. It says “49 percent of voters say the health care law has, as of today ‘significantly increased the price of health insurance….'” with “only 2 percent (yes, two) of voters saying their health care costs are going down.” Is it true that the new law has raised costs?

Potter: No, and it’s very clever and disingenuous how they’re doing that. They’re citing public opinion, and I’ll give the opponents due credit — they’ve done a tremendous job of misleading Americans about this to get those kind of poll results.

No, The Affordable Care Act has not significantly increased premiums. You have to look at where premiums were going before the Affordable Care Act — they were going through the roof. The Affordable Care Act will ultimately slow the premium increases. What we are seeing now is that some insurers are trying to make as much money as they can now before the law fully kicks in in 2014. So there’s a lot of profiteering going on because of this long phase-in of the law, but studies show that only 1-2 percent of rate increases that have been implemented since the law passed can be attributed to the Affordable Care Act.

Feeney: The memo continues: “44 percent believe the new law has ‘caused many employers to drop health insurance coverage for their employees.’” Any truth to that?

Potter: No. The provisions of the law that pertain to employers haven’t really kicked in. I don’t think there have been many employers who have dropped coverage as a consequence of the law. I think there probably have been some employers who have dropped coverage because of the continuing cost increases from the insurance industry.

Feeney: These stats are about public opinion — why is it so low, and why are there so many misconceptions?

Potter: They come from a very well planned and executed campaign of misinformation. What is really going on is opponents of President Obama and Democrats in Congress have seen this as a great opportunity for them to try to turn people away from Democratic lawmakers. They’ve been demagoguing this issue, misleading people. And there has been no comparable campaign to explain the law and tell the truth about it.

Feeney: Last weekend my 2-year-old son fell at the playground and broke his leg. When we got to the emergency room, they asked for our insurance information before even looking at the screaming child’s leg or offering him any painkillers. It felt so absurd. I mean, when you go to a restaurant, you get to eat before you pay. Why is that the very first thing they ask when you walk in the door?

Potter: It’s because of the dysfunctional nature of our health care system. It wouldn’t happen if you were a Canadian citizen or if you lived in almost any other developed country in the world. But we’ve got a system in this country — and calling it a system is a stretch — that is controlled largely by big for-profit insurance companies, and the hospitals are very dependent on revenues, both from federal and state governments but also from insurance companies. Such a high percentage of the population is uninsured that hospitals have very high levels of uncompensated care, so they want to make sure they’re going to get some money. Though hospitals say they have collectively billions of dollars of uncompensated care — that’s not exactly accurate. Somebody has to pay for it, and as a result we have enormous cost-shifting — people who do have insurance are paying higher premiums to cover the costs of people who don’t have insurance and otherwise can’t pay for the care.

It’s just a ridiculous, absolutely absurd situation. We’ve got to change that.

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