March 2011

Through a series of bold adjustments in existing policies, the ACA essentially reinvents the private health insurance market, transforming it over time into a social good whose regulation is essential to the public's health and the means by which a nation assures that its population can obtain necessary health care. The principal elements of this transformation consist of a ban on exclusion and discrimination based on health status or pre-existing health condition, the obligation to adhere to principles of guaranteed issue and renewal, and the insertion of safeguards that will ensure that, once covered, individuals will have access to necessary care without regard to artificial annual or lifetime expenditure caps.

In the individual and small group markets, the historic epicenter of discrimination against the sick, the Act redefines coverage itself to encompass "essential health benefits" expressed in terms of both covered benefit classes and limits on cost-sharing. Most remarkably, perhaps, where the content of coverage is concerned, the Act defines essential health benefits to include habilitative treatments for persons with developmental disabilities. It is this benefit, whose traditional exclusion from private insurance products, represents the central means by which the market has denied beneficial care to a patient population that counts among the nation's most vulnerable.

The Act's provisions addressing health care for low-income, medically vulnerable and medically underserved Americans are no less seminal. Health reform remakes Medicaid, perhaps the single most important conceptual and operational pillar of the American health care system, because of its historic role in absorbing health care costs shunned by the private market and even by Medicare itself. Medicaid's achievements in this regard can fairly be said to be virtually immeasurable. For nearly 50 years, Medicaid has been the primary source of investments that markets traditionally seek to avoid: in the poor, in populations that carry high social and health risks; and both directly and indirectly, in a primary care and hospital infrastructure for medically underserved communities and populations.

Former Senator Tom Daschle keynoted the ACS event, calling the battle against legal and other challenges to the health care law "a fight for the equality and the liberty of all Americans and their moral right to health security at long last."

Former acting Solicitor General Walter Dellinger, who also discussed the law's constitutionality during an ACS phone briefing yesterday, predicted that Chief Justice John Roberts would author the majority opinion upholding the health care law when the challenge reaches the Supreme Court.

And National Senior Citizens Law Center Public Policy Counsel Simon Lazarus questioned whether the Constitution puts Congress in a "straightjacket" the way opponents of the law have contended.

Watch the videos after the jump to hear George Mason University School of Law professor Ilya Somin challenge Dellinger and Lazarus, and Center for American Progress Chief Operating Officer Neera Tanden discuss obstacles to implementation.