Tuesday was considered the pivotal day with its focus on the controversial individual mandate, but the U.S. Supreme Court justices turned up the heat on Wednesday morning as they questioned arguments on “severability” to determine whether to keep any or all of the health reform package.
In the final stretch of the three-day case, the justices kept attorneys on their toes as they peppered them with questions, poked holes in their arguments and pondered issues of judicial restraint, legislative intent and Congressional power. The arguing attorneys seemed to be rattled at times, but the justices interjected their badgering with levity.
It’s unclear how the Supreme Court will vote in June. However, a few justices seemed open to killing portions of the 2010 Patient Protection and Affordable Care Act, namely the mandate requiring people to pay for health insurance or face a penalty when they filed their federal income tax returns in 2015. The proposed Medicaid expansion would cover poor adults under 65. Others could maintain coverage under existing employer plans or obtain subsidized insurance through state exchanges.
“If the individual mandate is unconstitutional, then the rest of the act cannot stand,” argued Washington attorney Paul D. Clement, who represented the 26 states and private parties that filed lawsuits against the health plan.
Justice Ruth Bader Ginsburg called severability a choice between a “wrecking operation” and a “salvage job.”
“I don't know another case where we have been confronted with this — with this decision,” Justice Antonin Scalia said. “Can you take out the heart of the act and leave everything else in place?”
Justice Elena Kagan used a bread analogy. “Is half a loaf better than no loaf?” Kagan asked. “On something like the exchanges, it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won't do everything that Congress envisioned.”
“Well, Justice Kagan,” Clement countered, “I think there are situations where half a loaf is actually worse.”
Based on the argument of Deputy Solicitor General Edwin S. Kneedler, a whole loaf would be best, but a half loaf or even assorted slices could work.
On Wednesday afternoon, the Supreme Court returned to hear arguments on whether states are being coerced into expanding Medicaid.
“Why is a big gift from the Federal Government a matter of coercion?” Kagan asked Clement. “In other words, the Federal Government is here saying, ‘We are giving you a boatload of money. There are no — there’s no matching funds requirement. There are no extraneous conditions attached to it. It’s just a boatload of federal money for you to take and spend on poor people's health care.’ It doesn’t sound coercive to me, I have to tell you.”
Clement contended that states faced giving up their Medicaid role if they didn’t participate in the expansion.
“Well, why isn’t that a consequence of how willing they have been since the New Deal to take the Federal Government’s money?” asked Chief John Roberts, adding that the states have compromised their independence. “They tied the strings; they shouldn’t be surprised if the Federal Government isn’t going to start pulling them.”
U.S. Solicitor General Donald B. Verrilli Jr. said that “the Affordable Care Act's Medicaid expansion provisions will provide millions of Americans with the opportunity to have access to essential health care that they cannot now afford.”
The expansion would help to ease health and health-care disparities, which disproportionately affect African Americans. “For blacks, Asians, Hispanics and poor populations, at least half of the core measures used to track access are not improving,” the U.S. Dept. of Health and Human Services indicated in its National Healthcare Disparities Report, released in 2008. “The problem of persistent uninsurance is a major barrier to reducing disparities.”
Uninsured people tend to be in worse health and are less likely to receive preventive or ongoing care, especially for chronic conditions. Of the 50 million uninsured, 19 percent are African Americans. Twice as many African Americans are unemployed than whites (14.1 percent versus 7.3 percent), and those who have jobs often lack employer-sponsored insurance plans.
Abe Brown from Rockville, Md., hopes that the Supreme Court keeps the Affordable Care Act intact. “The act is a good start in the right direction,” said Brown, who attended the oral arguments with his 14-year-old daughter, Kristina, an eighth-grade honors student who aspires to be a justice one day.
Alfred Chiplin Jr., managing attorney at the Center for Medicare Advocacy Inc. in Washington, D.C., predicted that the Affordable Care Act would survive in some form. “I think the court will likely find severable any provision that it rules to be unconstitutional,” Chiplin said. “This will allow the unaffected portions to go forward.”
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