When the Supreme Court declared the Affordable Care Act’s provision for an individual mandate to buy medical insurance constitutional, the majority did so by placing the mandate within Congress’s power to tax rather than under the Commerce clause. While the decision keeps most of the law intact, what does it mean politically? And how will the characterization of the mandate as a tax play among supporters and opponents of the legislation?
Supreme Court rulings on politically prominent issues can have three effects on subsequent attitudes among the public: legitimation, backlash or polarization. As Nathan Persily, Jack Citrin and Patrick Egan show in their 2008 book, “Public Opinion and Constitutional Controversy,” legitimation occurs when public opinion moves in line with the court, as it has over time with regard to the 1954 Brown v. Board of Education school integration decision and to gender equality decisions like Stanton v. Stanton in 1975, which invalidated laws predicated on traditional gender roles that differentiated between men and women in the allocation of government benefits.
Backlash occurs when public opinion moves directly in opposition to the court’s ruling, as when the public shifted, more in favor of school prayer and against flag burning after controversial decisions on those issues. Crucially, under polarization, overall opinion does not shift but different groups move in opposite directions. Examples include the gap in abortion opinion that grew between Protestants and Catholics after Roe v. Wade in 1973 and the difference between liberals and conservatives that widened after the Lawrence v. Texas gay rights decision in 2003.
A look at public opinion during the first few years after the Massachusetts health care reform in 2006 offers some insights into what might happen now at the national level. Although there has not been a legal challenge as dramatic as the suits against the Affordable Care Act, the Commonwealth’s experience does show how public opinion changes with health reform implementation. Of course, the Massachusetts case is different because it is a state-level reform that cannot elicit the objections to federal intervention that the Affordable Care Act. does, and yet the case is informative because the underlying structure of the reform is nearly identical. So what happened? There is evidence of both mild legitimation and pronounced polarization.
Polls by the Harvard School of Public Health in the first years after the law was implemented show that both the health reform overall and the individual mandate became more popular. Support for the Commonwealth’s reform increased from 61 percent in September 2006, shortly after implementation began, to 69 percent two years later, in June 2008. Similarly, support for the individual mandate increased from 52 to 58 percent. Overall support for the reform has dropped and risen since, with the percentage in favor of the mandate falling back to 51 percent. It is not always steady progress.
There is also evidence of sharp partisan polarization over the issue: Democrats became more supportive of the reform and the mandate while Republicans became more opposed, despite the fact that the legislation was signed by a Republican governor (after having passed the Democrat-controlled state legislature). In 2006, Democrats were 12 points more likely than Republicans to support the law (68 to 56 percent). By 2008, that gap had grown to 32 points (76-44). Similarly, Democrats were 5 points more likely than Republicans to support the individual mandate in 2006 (56 to 51 percent), a gap that grew to 17 points two years later (65 to 48 percent).
Politically we might expect similar polarization at the national level. While increased familiarity and experience with the new legislation may enhance overall support in ways that might elate proponents of the law, implementation also seems to breed antagonism, perhaps precisely because opponents find such success threatening. That the court’s ruling defines the mandate’s penalty as a tax opens up opportunities for damning rhetoric from the reform’s opponents as well. Already we are hearing reminders that candidate Obama promised not to raise taxes on the middle class. As Sarah Palin wrote on Facebook after the court released its decision, “Obama promised the American people this wasn’t a tax and that he’d never raise taxes on anyone making less than $250,000.” Now, she said, we “see that this is the largest tax increase in history.” Glenn Beck’s Web site agreed: “No taxes on the middle class? Lies! Obamacare now Obamatax.”
However, a large group – both in Massachusetts and nationwide – are political Independents, whose opinions are informative because they are one group not constrained by partisanship. Their support for the Massachusetts reform and mandate grew over time, from 60 to 70 percent for the overall reform, from 53 to 58 percent for the individual mandate. With Democrats and Independents constituting a majority of voters nationwide, supporters of the Affordable Care Act may not just celebrate the law’s survival but also have good reason to expect that its popularity will increase — if the law, having made it through the Supreme Court, now also survives the political threat of a Republican repeal effort.
Andrea Louise Campbell is an associate professor of political science at the Massachusetts Institute of Technology. Her April 4 Op-Ed essay, “Down the Insurance Rabbit Hole,” was cited by Justice Ruth Bader Ginsburg in her concurring opinion in the health care decision on Thursday.
