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Ruling may pose test for candidates

By Matt Viser
Globe Staff / March 29, 2012
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WASHINGTON - It was among the day’s most probing questions about health care, with ramifications for tens of millions of Americans and the presidential campaign.

But it did not come from a Supreme Court justice. It came from Jay Leno on “The Tonight Show,’’ and it was directed to his guest, Mitt Romney.

What might happen, Leno asked Tuesday, if the Supreme Court rules President Obama’s health care overhaul is unconstitutional? How will people - including children - with preexisting medical problems cope?

The lack of a clear answer to that question, and many others raised by the prospect that the law could be overturned, may force candidates to rewrite their political scripts. If the high court in June rules the law invalid, Republicans will no longer have the luxury of addressing Obama’s health care plan with a simple “I am against it’’ and move on to the next issue.

Already, that possibility is giving rise to “what if’’ questions being posed everywhere from the couches of late-night comedians to the hallowed halls of Congress.

For Romney, the GOP presidential front-runner whose health care law in Massachusetts contains elements at the heart of the Supreme Court case, the election was supposed to be almost exclusively about Obama’s handling of the economy. On the trail, he dismisses the health care law as destructive.

“I don’t think Romney would want the Supreme Court to uphold ObamaCare, but in a weird way his campaign is charted out and planned out to attack ObamaCare,’’ said Scott McLean, a political science professor at Quinnipiac University. “Neither party is fully comfortable with the outcome of striking down ObamaCare. Because at least if the court upholds it, there’s a script. There’s a strategy, a game plan that they have.

“If it’s struck down, it becomes much more complicated and much more unpredictable how this debate will go.’’

While campaigning, Romney often criticizes Obama’s plan, but he less frequently brings up his own prescriptions for fixing the vexing problems facing health care. If the law is ruled unconstitutional, political observers say, it would be more incumbent on Romney to explain his own ideas.

“People with preexisting conditions - as long as they’ve been insured before, they’re going to continue to have insurance,’’ Romney said in response to Leno’s question on NBC’s “Tonight Show.’’

But, Leno asked, what if they have not been insured?

“Well, if they’re 45 years old, and they show up and say, ‘I want insurance because I’ve got a heart disease,’ it’s like, ‘Hey guys, we can’t play the game like that,’ ’’ Romney said. “You’ve got to get insurance when you’re well, and if you get ill, then you’re going to be covered.’’

For voters who did not have the means to get insurance before an illness, that prospect is not likely to win votes.

As a whole, Obama’s law is unpopular with the American public. But many components of the law are very popular - one that bars health insurers from denying coverage to those with preexisting conditions is favored by 85 percent of respondents in a New York Times/CBS News poll.

Yet, the Obama administration contends this provision may have to be stripped from the law if the individual mandate is disallowed. No insurers would agree to the provision, without a mandate to bring in healthier participants.

Romney has said he would use legislative and executive means to repeal Obama’s law - if the courts do not do so beforehand - and replace it with a new version. One component of Romney’s new law would prohibit insurance companies from denying coverage because of a previously unknown condition. But he would allow this only for those who have been continuously insured for a fixed period of time.

The uncertainties over health care could breathe new life into Rick Santorum’s presidential campaign. The former Pennsylvania senator in recent weeks has increased his criticism of Romney, saying the issue should illustrate to voters the perils of nominating someone whose signature health care legislation in Massachusetts provided a blueprint for the federal law.

“Obamacare and Romneycare crush jobs and are an affront to our freedoms,’’ Santorum said in Sparta, Wis. “Republicans need a nominee with the credibility to take on President Obama on an issue so important to the voters, and I am that person.’’

Santorum may be able to capitalize on the issue in the short run, but he still faces an uphill battle against Romney, and the Supreme Court ruling will not come until June, when it could be too late to give him an advantage in the Republican nominating contest.

The risks of the high court challenge are significant for Obama, who expended vast political capital to pass a health care law that had no Republican support and was controversial from the start. If his signature law is overturned, it would be a deep political setback.

As the economy improves, there also is the potential for this ironic scenario: Obama eagerly focusing on the economy, the issue that several months ago seemed to be his biggest weakness, while Romney uses health care - once seen as his Achilles heel - to criticize the Democratic incumbent for being so inept that he pushed through a law that is unconstitutional.

At the White House, officials said they have no contingency plans for how to handle a setback if the Supreme Court strikes down all or portions of the law. Instead, spokesman Josh Earnest said, the administration is focused on implementing provisions of the law.

On Capitol Hill, any court decision that changes the Affordable Care Act would force legislators to contemplate how and whether to salvage the law.

“There’s discussion, quietly, among some people about what-ifs,’’ Senator John F. Kerry, the Massachusetts Democrat, said Wednesday at a Capitol Hill press conference. “But there is no overall, you know, plan in place because I think people have confidence the court will do the right thing.’’

The heightened activity around health care gives Democrats another chance to argue the law’s upsides. On Wednesday, they were already touting popular provisions like allowing children to stay on their parents’ insurance until age 26, or barring insurance companies from denying coverage based on preexisting conditions.

Those benefit losses, they argued, could acutely hurt families.

“You wind up with a whole bunch of Americans who are going to be told, ‘Sorry, you don’t have insurance anymore, even though you have terminal cancer,’ ’’ Kerry said on CNN. “Kids who are currently covered till the age of 26 will no longer be covered. Seniors, tens of thousands of seniors, will suddenly find they’re no longer getting prescription drugs that they get today.

“I mean, there would be a whole upheaval that I think people are only just now beginning to focus on.’’

Matt Viser can be reached at maviser@globe.com.

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