Conservative Supremes Can Overturn ACA With “All Deliberate Speed”

If conservative Supreme Court justices are determined to overturn the Patient Protection and Affordable Care Act (ACA), then why not look to the Court’s famous ruling on school desegregation for what comes next? Couple the declaration that the signature legislative achievement of the nation’s first black president is unconstitutional with the enforcement urgency that followed Brown v. Board of Education in 1954.

In other words, tell the federal government to dismantle the ACA with “all deliberate speed.” Given the history of how putatively law-and-order Southerners responded, that should give health reform breathing room until at least the middle of the 21st century.

There are similarities between Brown and the ACA case. Both are rooted in controversies over state versus federal power and both, coincidentally, involve Kansas. In Brown, it was the Topeka Board of Education that said the Constitution allowed it to maintain separate schools for whites and blacks. In the ACA, it’s the Kansas state attorney general who has joined with 25 others to say that the Constitution protects state from having to expand the Medicaid program for the poor.

Brown was a landmark ruling that initially prompted little concrete change. When civil rights advocates returned to the Supreme Court in 1955 seeking better enforcement, the Court set a standard of “all deliberate speed” that in effect winked at much deliberate disregard. It wasn’t until 1969, in Alexander vs. Holmes County Board of Education, that the Court ruled that desegregation had to proceed immediately.

Which is why school district land in Holmes County, Miss., was promptly sold to a private group for a nominal sum and quickly became, as in many other parts of the state, the site of a private academy. Jump forward another 40 years, when our son was in the Teach for America program in the county seat in Lexington: there were no white students in the high school and precisely one, tow-haired white child in the middle school.

Proponents of health reform can be inspired by this example. If conservative justices will adhere to the “all deliberate speed” precedent, states which have begun implementing Medicaid expansion, health insurance exchanges and other ACA provisions have at least 15 years to talk about formally unwinding them while figuring out some legal way not to undo them at all. In other states, federal money for health reform might have to be channeled through private sources. Perhaps “charter” hospitals and clinics and “private academy” medical schools?

Since we know that lack of access to health care leads to premature death and disability, this could also be positioned as a right-to-life issue. So, Catholic bishops, here’s the deal: we’ll drop the birth-control and abortion coverage, and you take responsibility for bringing affordable access to medical treatment to every American. With all deliberate speed, of course.

Michael Millenson is a Highland Park, IL-based consultant, a visiting scholar at the Kellogg School of Management and the author of “Demanding Medical Excellence: Doctors and Accountability in the Information Age. This post originally appeared in The Huffington Post.