No matter what your view is on the political implications of the ruling, said Jerome J. Ghigliotti Jr., one thing is clear as a result of the court’s decision: ObamaCare will not get repealed.
“We have ObamaCare now, and it’s here to stay,” he said.
Ghigliotti is a California attorney whose practice has included insurance defense, workers’ compensation law, aviation and real estate law. On Thursday, he addressed the 2012 Annual Gathering of American Mensa, for a speaking program called “Recent Significant and High Profile Legal Issues” that have been decided by the Supreme Court. Among the most significant, he said, were rulings on whether the Second Amendment applies to the ability to cities and states to ban handgun sales, the court’s ruling on an Arizona law that imposes restrictions on what can be done by illegal immigrants – and, of course, the court’s handling of the universal health care law.
The court’s decision, Ghigliotti said, means it will likely be impossible to repeal it outright, and he said hospitals, insurance companies and other health care providers are already starting to figure out what they need to do to comply with the law.
Outside of having the nation’s top court bounce the entire bill, Ghigliotti said opponents of the law have very limited ammunition now.
“What people will do now is attacking provisions of it, but those are minor provisions,” he said. “Some of them will be struck down, but it won’t matter.”
The court decided that overall, Congress was within its authority to enact the sweeping law, he said.
“There were parts of ObamaCare that were under scrutiny,” he said, “like the individual mandate.” That requires Americans who do not have health insurance but can afford it to buy insurance or face a fine.
Opponents argued that it was a tax increase, while the Obama administration argued that it was a penalty, Ghigliotti said. The court sided with the opponents and ruled that it was indeed a tax – and upheld it anyway.
The court said it was not legal under the Commerce Clause, which states that Congress has the right to regulate interstate commerce, but instead decided that it was constitutional under the tax clause, granting Congress the power to tax and spend.
“They were looking at how do you distinguish between the individual mandate being called a penalty or a tax, but now it doesn’t matter,” he said. “They (Congress) are taking money away from you, and the court said it’s legal, so they’re going to do it.”
Insurance companies, he said, are already beginning to change their policies to comply with two key provisions of the new law: the ability of children to stay on their parents’ health care plan until they’re 26 years old, and an inability to prohibit people with pre-existing conditions from getting coverage.
If insurance companies did not want to cover people who had previous bouts with cancer or any other serious illness because of the costs involved, how will they respond to the law? Ghigliotti said they’re already doing just that.
“I know what they’re going to do with it,” he said. “They’re going to raise the premiums.”
That means people will be paying more for their insurance – but it also will mean a lowered financial burden for counties and states, he added.
In the past, the ban on pre-existing conditions meant “A lot of people wound up with no medical coverage whatsoever, so they turned to the state when they got sick,” he said.
ObamaCare, he said, will eliminate the need for states to provide that coverage to the uninsured.
“This will avoid that,” he said. “You’ll have lower county taxes – and higher premiums.”
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