Rick Perry doesn’t have much of a health care record to run on. A quarter of Texans are uninsured, the highest in the country, Texas has the narrowest Medicaid eligibility standards, and spends the least of any state on mental health and the second to least on health care for the poor. Perry’s sole accomplishment seems to be the 2003 overhaul of the state’s malpractice system, which the newly-minted candidate promoted during a stop in New Hampshire on Sunday:

The two top issues in the election, he told voters, are jobs and debt, which Romney, too, hammers on the campaign trail. But while Romney tells voters repeatedly how much he knows about the economy from working 25 years in the private sector (and spends little time talking about his record as governor of Massachusetts), Perry weaved together his vision for the nation’s economy by tying it to his accomplishments in Texas.

“We’ve had the most sweeping tort reform in the nation,” he said, asserting that as a result of the law passed in 2003, there are 20,000 more physicians in Texas. He spoke of cutting taxes and sparking the best job growth of any state in the nation.

And instead of blasting President Obama in the ways his competitors have, Perry chose his words carefully, explaining that he’s not angry but indignant about the federal government.

It’s hard to know if malpractice is to credit for the additional physicians, but it’s certainly not responsible for lowering the state’s health care costs and that serves as an uncomfortable case study for how the GOP’s favorite reform prescription — tort reform! — falls short of expectations.

When Texas capped non economic medical malpractice damages to $250,000 in 2003, most conservatives argued that the reform would free doctors from having to prescribe unnecessary treatment to avoid lawsuits. It didn’t work out that way. According to the Dartmouth research on disparities in health care spending, many Texan doctors are still prescribing aggressive treatments that don’t improve outcomes. In fact, as you can see from the chart below, Texas’ Medicare spending “seems to have gone up faster than the nation’s since 2003“:

The truth of the matter is, despite conservative claims to the contrary, malpractice costs make up only a very small percentage of health care spending. And most health experts believe that while fear of lawsuits may certainly be motivating doctors to practice defensive medicine (over prescribe unnecessary treatments and procedures) the nation’s fee-for-service reimbursement system bares more of the blame. Texas’ experience seems to validate that theory.

The Department of Health and Human Services released a second round of exchange regulations on Friday that could undermine the affordability of health insurance for families receiving employer-based coverage, consumer advocates say. Under the Affordable Care Act, people between 133 and 400 percent of the federal poverty line and insured individuals who have to spend more than 9.5 percent of their household incomes on their employer sponsored plans qualify for subsidized coverage within the exchanges.

Following passage of the law, the Joint Committee on Taxation issued a memo explaining that an employee could only qualify to receive federal subsidies through the exchange if the cost of their single policies exceeded 9.5 percent of income. Friday’s regulations reiterated this interpretation, despite health groups’ efforts to expand the regulation to include the cost of family coverage in the calculation and allow far more people to qualify for subsidized insurance. Tim Jost explains:

The most controversial issue addressed by the NPRM is how to determined whether employer-sponsored coverage is unaffordable. Taxpayers who have an offer of coverage from their employer but who would have to pay more than 9.5 percent of their household income for their share of the premiums can decline that coverage and receive a premium tax credit to purchase insurance through the exchange. When this happens, the employer owes a penalty of $3,000 for each employee who does this up to a total of $2,000 times the number of all full-time employees in excess of 30. The statute is not entirely clear, however, whether the 9.5 percent applies only to the cost of self-only coverage or also to the cost of family coverage when the taxpayer has a family. This is obviously a significant question as employers usually charge employees much higher premiums for family than for single coverage.

As the Center for Budget Policy Priorities’ Judy Solomon writes, “By interpreting the ACA to require that the affordability of family coverage be measured by the cost of coverage for the employee alone, the proposed rule would mean that many spouses and dependents who are uninsured today because they can’t afford family coverage would remain uninsured in 2014. The better interpretation would allow these family members to get premium credits so they could purchase affordable coverage in the new state exchanges.”

New Jersey state lawmakers are seeking to address a serious lapse in the criminal justice process that unduly burdens victims of sexual assault. Under current federal law, health care providers must be reimbursed for collecting forensic evidence from a sexual assault victim. While all invoices for these services are supposed to go to the appropriate government agencies for review and payment, victims “frequently receive such invoices due to administrative errors or attempts to get payment from a victim’s insurance company.”

The New Jersey bill, which “overwhelmingly passed” both state chambers, would prohibit health care providers from sending those invoices directly to the victims. Calling it the “right thing to do,” bill sponsor state Rep. Annette Quijano (D) said, “I see no reason why we should add to that suffering by essentially forcing them to pay for the investigation into their own assault.” In a seemingly rare show of bipartisanship, state Sen. Diane Allen (R) — who sponsored the companion bill in the state Senate — agreed that such an “inhumane practice” needed to be prevented:

Under the proposal, victims could not be billed for services directly associated with forensic sexual assault examinations. This would include routine medical screening, medications to prevent sexually transmitted infections, pregnancy tests and emergency contraception, as well as supplies, equipment and use of space.

“In no other crime would it even be contemplated that victims receive an invoice for the collection of evidence needed to prosecute the offenders,” said Sen. Diane Allen, R-Burlington, who sponsored the measure in that chamber along with Sen. James Beach, D-Voorhees.

“Victims who receive a bill are needlessly forced to relive their attack all over again by the very people to whom they turned for help. This legislation will prevent this inhumane practice in New Jersey,” Allen said.

The state Senate approved the bill in late March, while the state Assembly passed it in late June. Gov. Chris Christie (R) has yet to sign the bill as it “remains under review by his office.” Christie has yet to personally address the matter, and “it’s not clear when Christie will act on the bill.”

Texas Tribune’s Jay Root notices that presidential candidate Rick Perry (R-TX) is backing away from his controversial executive order mandating young girls to receive the HPV immunization. The EO, issued in February 2007, sparked a backlash within Perry’s own party and eventually led the state legislature to override the order. Perry succumbed to the lawmakers’ wishes, but continued to defend his plan until he began campaigning to win the GOP nomination for president. Below is a short timeline of Perry’s evolution on the issue:

FEBRUARY 5, 2007 — ‘DOESN’T PROMOTE PROMISCUITY’: “Providing the HPV vaccine doesn’t promote sexual promiscuity any more than the Hepatitis B vaccine promotes drug use. If the medical community developed a vaccine for lung cancer, would the same critics oppose it, claiming it would encourage smoking?”

MAY 9, 2007 — ‘OPPONENTS MISLED PUBLIC’: “I challenge legislators to look these women in the eyes and tell them, ‘We could have prevented this disease for your daughters and granddaughters, but we just didn’t have the gumption to address all the misguided and misleading political rhetoric.‘”

JANUARY 2010 — ‘STAND PROUDLY BY IT’: “I always stand for life. That issue was about being pro-life. No sir, [it was not an error], not from my position. I’m about pro-life. As a matter of fact, that piece of legislation was not mandatory. In the sense that, if you can say no, something is not mandatory. And so I stand proudly by my pro-life position.”

SEPTEMBER 2010 — ‘DID WHAT WAS RIGHT’: “Let me tell you why it wasn’t a bad idea: Even though that was the result I was looking for, and that becoming the standard procedure for protecting young women against this very heinous deadly dreadful disease, it caused a national debate. I knew was going to take a political hit … at the end of the day, I did what was right from my perspective, and I did something that saved people’s lives and, you know, that’s a big deal.”

AUGUST 14, 2011 — ‘DIDN’T DO MY RESEARCH’: “I signed an executive order that allowed for an opt-out, but the fact of the matter is that I didn’t do my research well enough to understand that we needed to have a substantial conversation with our citizenry”…Instead of making the vaccine mandatory, “what we should of done was a program that frankly allowed them to opt in or some type of program like that.”

The January quote from his debate with Sen. Kay Bailey Hutchison (R-TX), who was then challenging Perry for the governorship, is particularly telling since Perry tried to portray the order as not mandating a vaccination. And while the measure did allow parents “to submit a request for a conscientious objection affidavit form,” it specifically mandated the vaccine for all female children before they entered middle school:

Rules. The Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade.

Unlike Perry’s order, the Affordable Care Act does not use the term “mandate,” but instead requires individuals who don’t obtain coverage to pay a penalty. The law also allows religious organizations and those who can’t afford coverage to opt out the requirement, thus fitting Perry’s definition of “not mandatory.”

Brad Joondeph of the indispensable ACA litigation blog reminds us that Friday’s 11th circuit court of appeals ruling included a silver lining for health reform proponents: while the court struck down the individual mandate, it did affirm the constitutionality of a provision that requires states to expand their Medicaid programs to 133 percent of the federal poverty line. Here is Joondeph’s summation of why that section of the law is not “unduly coercive”:

1. The Medicaid statute specifically and explicitly warns participating states (42 U.S.C. 1304) that Congress may “alter, amend, or repeal” any provision of the program.

2. The federal government will cover almost all of the costs of Medicaid coverage expansion (100% for the first few years, declining gradually to 90% in 2020 and beyond).

3. The states have four years’ notice to decide whether they wish to comply with the new conditions or instead withdraw from Medicaid.

4. It is not a “foregone conclusion” that non-compliance with the ACA’s Medicaid provisions will lead to a loss of all of a state’s federal Medicaid assistance. See 42 U.S.C. 1396c.

“Taken together,” the court concluded, “these factors convince us that the Medicaid-participating states have a real choice–not just in theory but in fact–to participate in the Act’s Medicaid expansion.” (P.67)

So the Medicaid question is safe for now — and it’s unlikely that the Supreme Court will grant a review of that question. But it will almost certainly consider the individual mandate and as Joondeph predicts, “There is a very good chance the Court hears one of the cases this term, and hands down a decision in June 2012. But there remains at least a decent chance that the Court does not grant any of the cases until after January 2012, which would likely mean calendaring the case for the 2012 October Term, and a decision in the spring of 2013.”

It can, but policy makers will have to devise some other way of compelling younger healthier applicants to purchase health insurance before they become sick and expensive. In light of Friday’s appeals court ruling against the Affordable Care Act’s individual requirement, below are several alternatives to making the law work without it:

1. Single Payer or Medicare for all – The constitutionality of using tax dollars to provide health coverage is not in doubt (see: Medicare, Medicaid). But, given the political landscape, this is probably the most improbable solution.

2. Public option – The court opposed to requiring Americans to buy a private product. By adding a public option you’re possibly eliminating that problem and even lowering premiums (and in turn, government expenditures on subsidies).

3. Auto enrollment - An individual is automatically enrolled in insurance unless she or he opts out. This obviously would only apply to people with employer coverage and those employers could have an incentive to lower their health care spending by actively discouraging workers to opt of insurance and younger employees would be more prone to go without coverage. Jon Gruber has estimated that approximately 24 million will gain coverage.

4. Late enrollment penalty - An individual can opt-in to insurance but pay a penalty for enrolling at a later date. But how will this work? Will the government really tell a 30-year-old individual with cancer that they can’t get insurance coverage because they didn’t sign up when they were 27 years old? And of course, if younger people stay out of the risk pool, costs will skyrocket. A similar proposal would allow insurers to charge applicants higher deductibles.

5. Multi-year waiver – People can opt out of buying insurance, but for a price. They’d have to sign a waiver on their tax return saying they would be ineligible for federal subsidies for a certain period of time, such as five years.

6. Open enrollment period – Individuals who purchase insurance after a certain pre-determined open period have to pay a lot more for coverage. This option can suffer from the same problem as number 4 (lower participation would lead to higher premiums since healthy people would stay out of the risk pool).

7. Encourage states to adopt their own mandate – As the Massachusetts example proved, there are no Constitutional objections there. States are well within their right to require people to purchase coverage.

8. Rewrite the mandate as a tax – What Congress should have done in the first place, since, as the court explained, it wouldn’t have any objection to Congress taxing (rather than penalizing) people without insurance.

Unfortunately, it is very hard to “score” these alternatives and I’m not aware of any economists (outside of Gruber) who have modeled the coverage and premium rates for these options. One big advantage of the mandate is that it has already succeeded in lowering the number of uninsured (see Massachusetts) and if we go down any other road, we could end up insuring far less people at a higher cost.