Health Reform: Not a Done Deal?

The ink wasn't yet dry on the Patient Protection and Affordable Care Act before cries went up for repeal. Minutes after the historic health-care-reform legislation was signed into law in March, more than a dozen state attorneys general filed suit, challenging the law's constitutionality; the suits now number more than 20. So far, legislatures in 39 states, from Virginia to Utah, have adopted or are considering measures to nullify the federal mandate that their citizens obtain health insurance by 2014.

Two bills have been introduced in the House of Representatives and one in the Senate to repeal the law altogether. Idaho's governor has called for an amendment to the U.S. Constitution that would prohibit Congress from mandating insurance. Class-action lawsuits are brewing. And polls show that Americans are deeply divided about health-care reform and its repeal.

As the challenges mount, it's fair to ask: Is health-care reform here to stay? The political challenges, at least for now, are more symbolic than threatening. Federal law trumps conflicting state laws, so legislation to nullify reform for citizens of a given state seems futile. And without a veto-proof majority in Congress, federal repeal legislation is unlikely to survive. But major provisions of the law won't even be implemented until 2014. "You could get a whole new balance of power in 2013," says Wake Forest University law professor Mark Hall. "A new Congress could derail the whole thing."

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The more pressing challenges to reform are the legal ones, which for the most part hinge on four key issues. The first is whether Congress's right to regulate commerce among the states extends to people who choose not to buy health insurance -- in other words, who aren't actively engaging in economic activity. "Congress has never used the commerce power to mandate that individuals enter into a transaction with a private company," says constitutional-law professor Randy Barnett, of Georgetown University.

Another issue is whether states are being coerced into compliance with the law as a condition of federal funding of states' Medicaid programs. A third legal aspect involves whether Congress appropriately structured the tax penalty for failing to obtain insurance. And here's one more, a biggie: Some say the mandate to buy insurance would deprive citizens of life, liberty or property without due process of law.

Will the Supreme Court settle health-care reform for good? So many challenges make it more likely that the Court will hear a case. The safe bet is that it will uphold an act of Congress, but a lack of precedent for parts of the sweeping law means that it's not a sure thing. "These challenges are not frivolous," says Barnett. "Supporters will need some fancy footwork to show why Congress can do something that's never been done."

Meanwhile, expect some foot-dragging. Some 19 states so far have refused to operate a high-risk insurance pool designed to provide temporary coverage for the uninsured until 2014, when the new law bars insurers from turning customers with preexisting conditions away. In those states, the feds will run the pools instead.