The road to health reform always ends up under a pile of lawsuits. “Medicare for All” would be no different.
Championed by Sen. Bernie Sanders (I-Vt.) and other progressive Democrats, Medicare for All faces enormous political obstacles — not the least of which is a major industry lobbying effort against the plan and anything that resembles it. But should it ever become law, it would also invite constitutional challenges. Just like the lawsuits targeting Obamacare — not to mention the blue state challenges against all sorts of Trump administration anti-Obamacare initiatives — the legal battles could directly threaten or undermine the new system for many years.
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In particular, the single-payer bill’s ban on most private health insurance — a huge U.S. industry employing millions of people — would be an instant legal quagmire. And a host of other issues, including abortion rights enshrined in the legislation, could easily produce another wave of lawsuits.
“The more you include something like a ban on private insurance, the more ingenious lawyers are going to come up with various arguments as to why that exceeds Congress’ powers,” said Nicholas Bagley, a liberal-leaning law professor at the University of Michigan.
Medicare for All goes much further than the Affordable Care Act, which significantly expanded federal regulation of private insurance and has faced countless legal challenges since its enactment almost a decade ago. Transforming the entire health care sector into a single-payer system and outlawing most private health plans, as Medicare for All backers propose, could be an “uphill battle” in the courts, said Katie Keith, a law professor and researcher with Georgetown University’s Center on Health Insurance Reforms.
“I can imagine a situation like the ACA with folks who are ideologically opposed suing just because they don’t want to go into this system — in addition to industry groups,” she said. “There could be a death by a thousand lawsuits approach.”
Many Democrats wary of the sweeping single-payer plan have favored more incremental alternatives that would preserve a bigger role for private insurance, and legal experts said these plans would be on safer legal ground.
Yet many progressive and conservative health law experts alike say the legal basis for Medicare for All has already been laid by vast government health insurance programs like Medicare itself, the nearly 55-year-old program covering 60 million seniors. And the federal government’s power to regulate private insurers and health care providers under a host of other programs has been supported by the courts.
“In the 1930s and ’40s, the Supreme Court vastly expanded government power under the spending clause, allowing the federal government to spend money on almost anything they want and regulate almost any transaction that qualifies as interstate commerce,” said Ilya Somin, a libertarian-leaning professor of constitutional law at George Mason University. “It’s highly unlikely the court is going to overrule that precedent now.”
Jonathan Adler, a legal professor at Case Western University who helped mount the unsuccessful challenge to nationwide ACA insurance subsidies in the 2015 Supreme Court case King v. Burwell, largely agrees that Medicare for All is on solid legal footing.
“I think there are far fewer constitutional issues with Medicare for All than there were with the ACA, largely because insofar as Medicare for some is constitutional, Medicare for all would be as well,” he said.
While the Medicare for All bills in the Senate and House wouldn’t ban health insurers entirely, they would prohibit private plans from covering anything included in the single-payer system. The bills detail an expansive benefit package that covers hospitalization, medication, long-term care, experimental treatments and more, seemingly leaving little for insurers to cover.
Under the envisioned system, private insurers may take on a much smaller role providing supplemental benefits and covering elective procedures like cosmetic surgery. However, their menu of offerings could grow if Democrats whittled down the proposed benefits package to bring down Medicare for All’s cost, now projected at around $30 trillion over a decade.
Rep. Pramila Jayapal (D-Wash.), author of the House’s Medicare for All bill, told POLITICO that she has not yet consulted with legal and constitutional experts on her legislation. She called the bill, introduced with just over 100 House co-sponsors in February, “a really great starting point” and said progressives will continue to refine it in the coming months.
Still, the legal implications are immense. Even determining what constitutes “health insurance” might be thorny. For instance, experts question if Congress has the power to ban a private doctor from setting up a contract with a private insurer or directly with a group of patients — arrangements that could allow many people to circumvent Medicare for All.
“It’s a fundamental liberties issue,” Adler said. “Individuals have a constitutional right to make their own health-related decisions, which limits the ability of the government to prohibit voluntary payment arrangements.”
A prominent conservative lawyer involved in the latest lawsuit over the ACA further argues that by forcing virtually everyone into government coverage, Medicare for All “run[s] into the same constitutional issues [as] the individual mandate.” Robert Henneke of the Texas Public Policy Foundation, who is representing a plaintiff challenging the ACA’s requirement to purchase coverage in Texas v. Azar, said that piece of the law raises constitutional questions.
But Somin, also a critic of the ACA and Medicare for All, says a single-payer plan does not have the same legal vulnerabilities as the largely private Obamacare model. Even though people’s health insurance options would be severely limited — essentially between fully free government coverage and completely out-of-pocket private care — he argues that choice is key.
“No one is actually required to use the Medicare for All program, or to make a purchase,” he said. “In the individual mandate case, they ran into the issue that that they couldn’t require people to buy insurance. But requiring a transaction is not the same as banning one.”
Still, the ban on duplicative private insurance could fall victim to logistical challenges as well as legal ones.
Dean Baker, an economist at the Center for Economic and Policy Research who testified in April at Congress’ first hearing on Medicare for All, said the number of ways for insurance companies to evade the ban are “almost infinite.”
“There are any number of ways to structure a contract so that it is effectively insurance without being technically insurance,” he told POLITICO, adding that progressives have yet to seriously confront this vulnerability.
“I can’t really blame them,” he said. “At this point, they are trying to build political support for the idea. This sort of issue would be a distraction. But if they do get to the point of trying to actually draft a bill that they expect to become law, they will have to deal concretely with how big a problem competing private insurance might be and how they can limit it as much as possible.”
Aside from the central question of whether Congress could effectively ban private insurance, Medicare for All could spur numerous other lawsuits that could ultimately narrow the scope of the ambitious plan.
Depending on how aggressively Democratic lawmakers enshrine women’s access to abortion and birth control, religious groups could challenge such mandates on religious liberty grounds — as they did for Obamacare’s birth control coverage rules, sparking two Supreme Court cases. Currently, Medicare for All legislation guarantees free coverage of all forms of contraception and abortion.
A provision in the House legislation that bans conditioning payments to health care providers based on the quality of care — an idea that has taken off in the sector as governments and the industry try to rein in costs — may also invite challenges from providers and industry groups.
Legal experts also cautioned that complicated health care bills may contain unforeseen statutory quirks that could be hard for Congress to predict or fix. Two major ACA lawsuits have been based on perceived ambiguities raised by opponents of the law: King v. Burwell and Texas v. Azar, the current challenge that will be heard by a federal appeals court in July.
Implementation challenges would also prove to be tricky, progressives acknowledge, and lawmakers will need to walk a fine line going forward — making sure enough of the population participates in the system without infringing on individual rights. Under the Medicare for All bills as currently drafted, patients and doctors would need to sign affidavits and submit information to the federal government in order to set up an out-of-pocket payment arrangement.
“[D]octors may opt to practice outside the system,” says Baker. “I know that the M4A folks want to make this difficult, if not impossible, but as with insurance, I doubt the current Supreme Court would support such restrictions.”