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Justices Meet to Decide Fate of Health-Reform Legislation
Date:3/30/2012

By Lisa Esposito
HealthDay Reporter

FRIDAY, March 30 (HealthDay News) -- Now comes the hard part.

Following three days of arguments that ended Wednesday over the constitutionality of the health-reform legislation passed by Congress in 2010, the nine justices of the U.S. Supreme Court will meet Friday and begin to decide whether the entire law -- or key provisions -- can stand.

While their final decision won't be announced until June, an initial vote on the fate of the polarizing legislation will take place Friday. Then during the weeks to follow, individual votes can change as the justices read each other's working drafts of opinions and dissents, the Associated Press reported.

Equally hard is trying to predict just how the justices -- typically described as four conservatives, four liberals and one "swing" member -- will vote.

Twenty-six states have challenged the constitutionality of the law, primarily over two provisions -- a requirement that most adults have health insurance by 2014 or face a penalty, and an expansion of Medicaid, the government-run insurance program for lower-income individuals.

Arguments over those provisions dominated much of this week's hearing before the high court.

"It's very hard to tell what can happen as a result of the oral arguments. [Justice Samuel] Alito has moved firmly into my 'no' vote column. But I think [Chief Justice John] Roberts and [Justice Anthony] Kennedy are still possible votes to uphold the statute," said Renee Landers, a professor at Suffolk University Law School in Boston, who wrote a recent commentary on the law in the New England Journal of Medicine.

"I think we learned from the oral arguments that definitely the four Democratic appointees -- [Justice Ruth Bader] Ginsburg, [Justice Stephen] Breyer, [Justice Sonia] Sotomayor and [Justice Elena] Kagan -- will definitely vote to uphold every part of the statute," she said.

But another legal expert said it can be risky to read too much into what the justices had to say this week.

"Before the arguments started, if you asked me my prediction, I would have told you that I thought it would be a very close case and I would put my money on the court upholding the law by a 5-4 decision -- and that's still what I would say," said Gregory Magarian, a professor at Washington University School of Law in St. Louis.

Still, Magarian had this caution: "It's hard to look at it and say it's a slam-dunk that they're going to uphold the thing."

Even before this week's arguments, Stephen Presser, a professor of legal history at Northwestern University School of Law, predicted that the Supreme Court would find the health-reform law unconstitutional.

Now, "it's even more likely than I thought it was before," Presser said. "What we've got is five justices, ones we suspected -- Roberts, Alito, Scalia, [Clarence] Thomas and Kennedy -- all expressing skepticism and, indeed, all five perhaps hinting that throwing out the whole Affordable Care Act is the right move in this case," he added.

"The clear message is that the 10th Amendment [which concerns the division of powers between the federal and state governments] still has some teeth," Presser said.

Allison Orr Larsen, an assistant professor of law at the College of William & Mary in Williamsburg, Va., said she expected the hearings to be "spirited and lengthy" and she wasn't disappointed. But, she added, "What seems like a surprise is that the press should be calling [the court's decision] already, which seems a dubious endeavor. It's hard to predict Supreme Court opinions based on oral arguments alone."

The Patient Protection and Affordable Care Act is the most ambitious government health-care initiative since the Medicare and Medicaid programs of the 1960s. Key provisions of the 2,409-page law include:

  • The so-called -- and highly controversial -- individual mandate, which requires almost all adults to have health insurance by 2014 or pay a penalty. Up to 16 million people are projected to join the rolls of the insured under the mandate.
  • Medicaid expansion. This would increase eligibility to all people under age 65 with annual incomes up to 133 percent of the federal poverty level -- about $14,850 for a single adult and $30,650 for a family of four in 2012. Another 16 million people are estimated to gain insurance under the expansion. The 26 states challenging the law contend that this expansion is a coercive move by the federal government and one that states can't afford.
  • State-run insurance exchanges. They will be created to help small businesses and individuals buy insurance through a more organized and competitive market.

Individual mandate appears to be at risk

One thing became very clear during this week's legal challenges -- the provision that almost all adult Americans have health insurance or face a financial penalty may be in jeopardy.

Robert Field, a professor of law in the department of health management and policy at Drexel University's School of Public Health, said the individual mandate seems at greater risk than it did prior to this week's arguments before the court.

"One of the interesting aspects of the oral arguments is -- this one anyway -- it's more important what the justices revealed to us than what the lawyers revealed to the justices," Field said.

Regarding Justice Kennedy, considered the swing vote, Field said: "Based on [Tuesday's arguments], I predict he would rule against it [the mandate]. Of course, I have to preface that by saying that predictions are always dangerous."

He added, however, "I would predict that they will not rule against the act as a whole. There's just too much there that is clearly unrelated to the mandate."

Landers thinks the mandate itself might survive. "I don't think all bets are off yet," she said. "Reports of its demise are premature."

Supporters of the individual mandate argue that without the requirement that people have insurance coverage while they're healthy, there won't be enough money in the risk pool to pay to take care of them when the need for health care eventually -- and inevitably -- arises.

No agreement on whether the law can survive without mandate

Landers believes that even if the individual mandate were to fall, the rest of the law will still stand.

"Both Justice Kennedy and Chief Justice Roberts made this point each a couple of times during the arguments: there has to be deference to Congress, and the court is not in the place of second-guessing the alternatives Congress has chosen," she said. "The court overturning a congressional statute is a big deal."

But Northwestern's Presser suggested that if the individual mandate is thrown out, some of the court's four liberal justices might join with the conservatives in voting against the whole act.

The Affordable Care Act has been controversial since it was passed by Congress and signed by President Barack Obama in March 2010. Numerous polls have found that Americans especially don't like the individual mandate. But a recent Harris Interactive/HealthDay poll found that people are starting to accept certain key provisions of the law -- such as the ban on insurance companies turning away applicants with preexisting health problems.

On Wednesday, the court debated whether the health-reform law could function without the individual mandate. Justice Scalia referred to it as the "heart" of the statute. And if the mandate were ruled unconstitutional, Justice Ginsburg said the court would be left with a choice between "a wrecking operation" and "a salvage job," The New York Times reported.

But Landers said that the law's three mechanisms to insure more Americans -- the individual mandate, the expansion of Medicaid, and the government-run insurance exchanges -- don't depend on one another.

"Would it be better if all three worked in tandem? Yes," she said. "Does it totally undermine what Congress is trying to do if one piece of it falls out? No."

Drexel's Field said "the guts of the health reform plan are really the guaranteed issue provision -- that insurers can't deny coverage for preexisting conditions -- and the community-rating provision saying that they have to charge rates that are spread out over the community."

As for the Medicaid expansion, Landers and Magarian believe that it's safe, unless the entire law is ruled unconstitutional.

"Well, I don't want to say that, because a couple of months ago I would have said the mandate is fairly invulnerable," Field noted. "But I think the Medicaid expansion rests on stronger ground. For one thing, it's been upheld by every single lower court that's considered the issue."

More information

Visit George Washington University School of Law to learn about the opinion-writing process for the U.S. Supreme Court.

SOURCES: Renee M. Landers, J.D., professor of law, Suffolk University Law School, Boston; Robert Field, J.D., Ph.D., professor of law, department of health management and policy, School of Public Health, Drexel University, Philadelphia; Gregory Magarian, J.D., professor of law, School of Law, Washington University in St. Louis; Stephen Presser, J.D., Raoul Berger Professor of Legal History, Northwestern University School of Law, Chicago; Allison Orr Larsen, J.D., assistant professor of law, College of William & Mary, Williamsburg, Va.; Associated Press; The New York Times


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