National healthcare, ObamaCare, the Patient Protection and Affordable Care Act – whatever you refer to it as – the historic legislation passed by Congress in 2010 revolutionizing the American health care system is now law.
Or is it?
On Sept. 28, Georgia joined 25 other states asking the U.S. Supreme Court to rule on the constitutionality of the federal health care law that is the cornerstone of President Barack Obama’s administration. The primary argument that Georgia and the other states are making is that it is unconstitutional for individual citizens to be required by the federal government to have insurance. Both sides cite Congress’s power under the Commerce Clause, a clause that gives Congress the power to regulate commerce between states.
Opponents of the law say this requirement exceeds Congress’ power since not having insurance should be up to the individual and not doing so would be considered inactivity.
Defenders of the law say requiring individuals to buy insurance is within Congress’ power since having or not having health insurance qualifies as activity.
The Supreme Court has agreed to hear the case during the term that began in late September. But the court’s final ruling, which could have obvious political ramifications, is not expected to be issued until after next fall’s presidential elections.
It is also important to note the Supreme Court, similar to some lower courts, could find the individual mandate to require insurance unconstitutional but leave other parts of the law in place. While this is somewhat of a common practice of the Supreme Court, it leaves states like Georgia in somewhat of a quandary.
The PPACA is setup to be implemented in increments over a period of years. Some portions of the law, such as requiring insurance policies to cover dependents up to 26 years of age, have already been enacted and are in place today. Other portions will have to be implemented before the Supreme Court ruling or certain actions will be taken by the federal government.
One such example is the health insurance exchange, which – while not required to be in place until 2013 after the Supreme Court decision – would require legislation during the 2012 Georgia legislative session if the state decides to establish their own.
An exchange is intended to increase competition and consumer choice among health insurance policies by allowing companies to bid for similar coverage. States can either receive federal funding to begin planning their own exchanges that meet their individual needs or opt not to start their own exchange, in which case the federal government will set up the exchange for them.
There are two types of exchanges, one to serve individual consumers (American Health Benefits Exchange, or AHBE) and one to serve small businesses (Small Business Health Options Program, or SHOP). Georgia could design these as separate exchanges or as a consolidated exchange.
This is part of the dilemma that Georgia faces. If we move forward with setting up our own state exchange, it could be construed by some as an endorsement of PPACA by a state that is challenging the law before the Supreme Court.
On the other hand if we don’t set up our own exchange, we face the reality that the federal government will set up an exchange for us. By doing this, we could potentially leave our state’s health insurance markets vulnerable to even more federal interference and disruption.
Over the years, some believe our state has made great strides in requiring certain mandatory coverage, such as tests for colorectal cancer and mammograms and child wellness services, within our health insurance policies. Would the federal exchange include this mandatory coverage or would they be excluded?
Still others believe our state has gone too far and that eliminating some of these mandatory requirements would yield more affordable health insurance.
Another consideration is that regardless of how the Supreme Court rules, having an exchange where insurance companies are forced to compete on a level playing field would help our citizens and particularly our small businesses. In response to this very important decision, Gov. Nathan Deal created the Georgia Health Insurance Exchange Advisory Committee that has been meeting and will issue their final report and recommendations in December.
Mandatory health insurance for all – it is the law.
Or is it?

Carter can be reached at Coverdell Legislative Office Building Room 301-A, Atlanta, Ga. 30334 or (404) 656-5109.