THURSDAY, March 29 (HealthDay News) -- Now comes the hard
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
settle in to decide whether the entire law -- or key provisions --
Their decision is expected in June.
Equally hard is trying to predict just how the justices --
typically described as four conservatives, four liberals and one
"swing" member -- will vote on the polarizing legislation.
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
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
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
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
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
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
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
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
"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."
Visit George Washington University School of Law to learn about
opinion-writing process for the U.S. Supreme Court.
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