segment of our population at least—especially not when it’s the
government doing the telling. Our healthcare system is full of choice,
choice that often adds cost and confusion without providing any meaningful
advantage but that the public holds dear anyway.
Tied in with this choice structure, the pluralistic, free enterprise nature of
the system is now reinforced by a broad and deep network of providers and
payers who have a stake, or believe they do, in preserving the status quo.
These stakeholders have substantial economic power and political clout;
their perspectives, desires and fears must be considered when any change is
contemplated. Compounding this point, our national commitment to the
status quo in health care matters is reinforced by a broader societal
suspicion of change. We are loath to let go of what we have unless we
know, or at least are fairly sure, that what will replace it will be better.
Unfortunately, with so many separate elements, forces and imponderables
in our system, no one can assure that the ACA’s path to healthcare reform
will play out well enough to satisfy all, or nearly all, of the U.S. public. It is
painfully obvious that many believe the ACA is a disaster and will destroy,
or at least greatly damage, a system that is one of the best in the world.203
The foundational concept of the ACA, one that makes it uniquely
American and consistent with our national history and expectations, is that
it is not highly prescriptive. It leaves much room for free choice and
operates largely by incentives and disincentives rather than by rigid rules. A
key example of this flexibility is that the employer and individual mandates
are not full mandates; the penalties for non-compliance are not so severe
that compliance is the only option. This latitude for free choice, more than
any other aspect, makes it difficult to predict what the future will bring.
Under the ACA, the future will be what countless parties decide to make it.
Insurers can decide, within limits, what their health plan offerings will
include and what they will cost. Employers can decide what they want to do
regarding the provision or non-provision of insurance and the adjustment of
compensation packages to adapt to their coverage decisions. Employees can
accept what their employers offer them or push back in an attempt to affect
employer actions. If they push back, they may be more or less successful.
The quality and cost of health care may rise, fall, or stay relatively
unchanged because of the ACA’s innovations and requirements and
providers’ reactions to them. Moreover, people’s perceptions of how the
ACA is working will differ depending on their personal situation and may
203. Whether the U.S. healthcare system really is one of the best in the world depends
on whom you ask and what criteria are used to evaluate it. Clearly on many well-established
measures - e.g., longevity, infant mortality, percent of the population with reliable access to
good quality care, etc. - our system does not rate so well. See Orlando (2013), supra note 78,