Panel diagnoses high court decision

No matter November’s outcome, health care will remain front and center

DENVER – The Supreme Court’s ruling last week on President Barack Obama’s signature health-care law won’t be the last word on the subject, panelists at a business group’s breakfast said Monday.

The group included Attorney General John Suthers, who sued to overturn the law, and Cindy Gillespie, who helped former Massachusetts Gov. Mitt Romney craft his state’s universal insurance law. Obama often points to Romney’s law as the inspiration for the national Affordable Care Act, but Romney last weekend repeated his pledge to repeal Obama’s law.

Suthers joined officials from 25 other states in suing to overturn the law, based on the grounds that Congress cannot force people to buy a product.

Most arguments centered on congressional power to regulate business in the Constitution’s commerce clause. But the court upheld the law based on Congress’ power to tax, which shocked Suthers.

“The court has answered the question, can the federal government force you to buy broccoli, and the answer is yes,” Suthers said.

However, after thinking about the decision all weekend, Suthers thinks Chief Justice John Roberts might have upheld the law while still placing a strong limit on further use of federal power. Congress, in theory, could levy a tax on people who don’t buy broccoli or some other product, but he doubts that would happen.

“It will be a power very seldom exercised, if ever,” Suthers said.

Gillespie was a top adviser to Romney when he passed the Massachusetts health-care mandate. She’s now a senior attorney specializing in health care at McKenna Long & Aldridge.

In an interview after the panel discussion, she defended Romney’s law, which included the most controversial feature of Obama’s law – the mandate that everyone who can afford insurance, buy it.

“Massachusetts was a solution designed for Massachusetts,” Gillespie said. “I think you’ll see a lot of states weighing in to get the freedom to do it the way they want to do, instead of having a one-size-fits-all solution imposed on them by the federal government.”

Gillespie said she was “extremely confident” that Congress will take up health-care spending again next year, regardless of which party wins or who is president, because it will need to cut the deficit.

Next year will be action-packed at state legislatures, too, Gillespie predicted. That’s because states now have the option about whether to expand their Medicaid programs for the poor to people with slightly higher incomes. The Affordable Care Act had told states to do this or else lose all their Medicaid funding, but the Supreme Court overturned that part of the law as too coercive.

Gov. John Hickenlooper last Thursday said it was too soon to say whether Colorado would expand its own Medicaid rolls in the wake of the high court’s decision.

One thing that’s certain, though, is that the state is pushing ahead with the Colorado Health Benefit Exchange, an online marketplace where people and small businesses can compare and buy health insurance in a way that’s supposed to be easier to understand than the current market.

“We are not a new state health-care system. We are a marketplace. Think Travelocity or Expedia or even Amazon,” said Patty Fontneau, executive director of the exchange. “It’s someplace people can go and shop.”

The exchange aims to be open by October 2013, and because of the tight deadline, leaders weren’t waiting to see whether the Supreme Court would approve the ACA. The federal law provides the funds for Colorado to set up the exchange.

The Denver Metro Chamber of Commerce sponsored the discussion.

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