In our opinion: Affordable Care Act far from settled despite Supreme Court ruling

Published: Wednesday, July 11 2012 12:00 a.m. MDT

Supporters of President Barack Obama's health care law celebrate outside the Supreme Court in Washington, Thursday, June 28, 2012, after the court's ruling was announced. The Supreme Court’s decision Thursday to uphold President Barack Obama’s historic overhaul is expected to be a boon to most of the health care industry by making coverage more affordable for millions of uninsured Americans

David Goldman, AP

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The U.S. Supreme Court has spoken, but very little seems to have been settled regarding the Affordable Care Act.

For one thing, the U.S. House is expected to vote today to repeal the law. Although that vote will be purely symbolic, given that the Senate would not, under its current makeup, vote to do the same and that the president would veto such a thing in any event, it is indicative of an uncertain mood in the nation. This November's election will do much to clear that up. Presumptive Republican nominee Mitt Romney has said he would use executive powers to allow states to obtain waivers to opt out of the law if he were elected president.

But even the election won't settle everything. The state of Texas has made that clear this week.

Texas Gov. Rick Perry wrote a letter to Health and Human Services Secretary Kathleen Sebelius, saying his state would not agree to expand Medicaid coverage as provided for in the act, nor would it set up a health care exchange. The law provides that each state should set up such an exchange, which would act as a marketplace in which people could comparison-shop among competing insurance providers as a means of controlling costs.

The Supreme Court decision that upheld the individual mandate, requiring nearly all Americans to purchase insurance or pay a "tax," also told Washington it cannot force states to expand Medicaid coverage by threatening to withhold funds, nor could it force states to set up exchanges. The administration is prepared to set up those exchanges in states that refuse to do so, but even that has raised legal questions.

The Congressional Budget Office has estimated 23 million uninsured people would gain coverage through these exchanges and that about 19 million of them would be eligible to receive subsidies granting them an average of about $6,000 each to do so. However, the wording of the Affordable Care Act says those people will receive this subsidy "through an exchange established by the state." The question is whether they can receive the help if the exchange is established by the federal government, instead.

The New York Times quoted James F. Blumstein, a professor of constitutional and health law at Vanderbilt University, as saying the distinction involves "a serious legal issue." That probably will involve many more lawyers heading to court, and it might once again involve the Supreme Court.

President Barack Obama has hinted that the Affordable Care Act may need to be tweaked or changed in some ways to become more effective. In her reply to Perry, Sebelius said, "We will continue to work with states to ensure they have the flexibility and resources they need to implement the Affordable Care Act."

Texas isn't the only state likely to take issue with exchanges and Medicaid expansion. Utah law already established exchanges before the act was passed, but lawmakers here may not be keen to expand Medicaid. What the court seems to have done, however, is to grant states some meaningful leverage as they negotiate with Washington over changes in the law.

Regardless of how that turns out, it is clear that much uncertainty will remain for some time concerning the Affordable Care Act.

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