Chilling Impact of Court Rejecting Health Care Law

by Randy Shaw on March 29, 2012

Progressives are surprisingly unconcerned about the Supreme Court’s now likely striking down of the individual mandate and perhaps the entire health care law. To the contrary, articles on sites like and argue that striking down the law creates an opening for single-payer, long the preferred progressive health care plan. But while it’s good to find a silver lining in any dark cloud, the negative impacts of the court’s striking down Obamacare go far beyond health care. Suddenly, every progressive reform measure will be charged with being “unconstitutional,” and many activists will figure that as long as the right-wing Supreme Court majority remains, there’s no point working to pass anything. And that’s exactly the attitude that opponents of progressive change hope to foster.

I’ve never been excited about the Obama health care measure, which expands coverage without meaningfully reducing costs. But for all of the criticisms leveled against the final bill and the process that got us there, there should be no dispute that the voters that elected Barack Obama and a Democratic House and Senate in 2008 wanted action on health care.

Nor should there be a dispute that the Court’s striking down the health care law all or in major part harms progressive interests. This is true not because Obamacare is a progressive approach to health care, but because its invalidation will make it much harder to arouse a public already cynical about government to support more systemic solutions to health care and other social problems.

The Challenge of Government Solutions

Few progressives see Obamacare as the best approach to health care. Yet the legal and political attacks on even this moderate measure with Republican roots shows the challenge all proposed new government programs face in today’s political environment. After all, most Republicans do not even support infrastructure projects that for decades had bipartisan support.

Proposals for increasing public transit, slowing climate change, creating affordable housing, improving schools, and every other part of the commonly described “progressive agenda” are not immune from the type of anti-government scare tactics used against health care. And should the Supreme Court majority designate itself a supra-legislature able to overturn any law Republicans do not like, these political attacks will be coupled with claims that progressive reforms cannot withstand court scrutiny.

That’s why even critics of Obama’s measure should be concerned about the Supreme Court striking it down. And this does not even address the new legal standard the Court will use to void the individual mandate, as it could well lead to new lawsuits challenging other government actions.

And why are single-payer advocates so confident that the current Supreme Court would uphold such a measure? Once politics rather than legal precedents govern all rulings, it is hard to believe that the Republican court would allow insurance companies to take the type of financial hit that single-payer imposes.

A Court ruling striking down health care reform will either deflate Obama supporters or energize them to try to switch control of the Court by re-electing the President. Considering Justice Kennedy soon turns 76 and is unlikely to remain on the bench through Obama’s second term, there is some chance that the right-wing majority can be broken up.

There is nothing to stop single-payer advocates from promoting this reform regardless of the Court ruling. Yet they are wrong to believe that striking down the most sweeping federal domestic measure in decades somehow broadens opportunities for progressive change.

Randy Shaw is author of The Activist’s Handbook and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century.

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