Does it matter if the Affordable Care Act is unconstitutional?

Will federal judges decide the future of health reform?  It’s an FAQ everywhere I go.  My ability to answer the question might be suspect because I am not an attorney, but my friends with law degrees don’t seem to have definite answers, either.   Like the future of the economy—an area where I do have some qualifications—the legal standing of reform is uncertain.   Anyone with a coin to flip can play the game with credentialed experts because nobody knows for sure how the Supreme Court will ultimately decide the issue.  (Indeed, the closest thing to a consensus among lawyers seems to be that it will go all the way to the Supreme Court…if the reform laws are not changed before legal challenges work through the lower courts.) 

From my perspective as a medical economist and health futurist, I don’t think the legal outcome really matters to health care decision-makers who are trying to guide their organizations through turbulent times.  Constitutionality is a red herring that diverts attention from the real challenge to the future of health care.  The economic outlook is dismal for at least another year or two; the odds of a turn-around anytime soon are exceedingly slim.  Consequently, the future of a health care enterprise is likely to be decided by its appropriate and timely responses to stagnant gross revenue.  Governors of the Federal Reserve Board have a lot more to do with the near-term future of health care than justices of the Supreme Court.

The key to a successful future is cutting the waste out of delivery and finance, then reallocating reclaimed resources to better ways of doing business.  After all, the issue likely to go to the top court—whether Congress has constitutional authority to force people to buy health insurance—is moot if uninsured Americans don’t have disposable income to make the purchase.  Even if the Supreme Court upholds the mandate and ObamaCare is not repealed or amended by the Congress, the economy is still unlikely to provide employers and consumers with more money to spend on health care. 

In other words, providers’ and payers’ economic futures are not going to be significantly affected by the ultimate legal outcome.  Health systems need to hedge their bets by quickly learning how to produce care of acceptable quality, as inexpensively as possible.  Our political leaders should have explicitly enacted this approach to reform, but they added fuel to the fire (i.e., mandated insurance) instead.

I believe that real reform is in the hands of providers, payers, and patients—not judges.  Your thoughts on the matter?  You don’t have to be a lawyer to make your case here…