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Health-care reform in cross hairs: Could it survive without individual mandate?

Both Republicans and some judges say the health-care reform individual mandate – that all Americans must buy health insurance – is unconstitutional. If they are right, is President Obama's signature achievement doomed?

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“If you want to protect people who currently have insurance from having their premiums increased significantly, you have to ensure that the pool is broad enough,” says Ron Pollack, executive director of Families USA, an advocacy group for health-care consumers.

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Methods besides a mandate could work to expand the insurance pool, “but they are less tried than an individual-responsibility provision,” Mr. Pollack says, using the administration’s term for the unpopular mandate. “It’s already been tested in Massachusetts and worked very well.”

A requirement to insure all comers without the mandate would produce “skyrocketing costs,” says Robert Zirkelbach, a spokesman for America’s Health Insurance Plans, a lobby group for insurers.

If the Supreme Court strikes down the individual mandate, pressure would be intense for Congress to act. Ed Haislmaier, a health policy researcher at the Heritage Foundation, sees multiple flash points in the reform that could spark action in Congress – beyond the current symbolic effort at repeal and even before any Supreme Court ruling on the mandate. (The possible cases are still in lower courts.)

The Obama administration and the Democratic leaders in Congress “are in a very difficult position politically, trying to defend this and at some point something is so bad that Congress has to actually go in and fix it,” Mr. Haislmaier says. “At that point the question is, why not the rest of it? And it’s like the dam breaking.”

Last month, Virginia federal district judge Henry Hudson found the individual federal mandate unconstitutional. “At its core, this dispute is not simply about regulating the business of insurance – or crafting a scheme of universal health insurance coverage – it’s about an individual’s right to choose to participate,” Judge Hudson wrote.

Hudson rejected the challenge to the entire statute, striking down only the mandate.

Dean says the mandate’s unpopularity with the public reflects the libertarian nature of this country. “That’s why the individual mandate I think is doomed – whether it gets thrown out in court or thrown out in the legislature or just ignored,” says the former Democratic chairman. “Americans can’t stand to be told what to do, no matter what party.”

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